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Introduction:
The 81st session of the Nevada legislature concluded on June 1, 2021. There are several new laws that have immediate impact for Nevada employers. This article highlights some of the more important changes.
AB 47 (effective Oct. 1, 2021) – Noncompetition Agreements
Effect: AB 47 modifies the current law, NRS 613.195, in several respects related to noncompete agreements. Noncompete agreements are now prohibited for hourly employees. Employers also are now prohibited from restricting former employees from providing service to a former customer or client under certain circumstances. Finally, an employee who brings an action challenging an impermissible noncompete agreement is entitled to recover attorney’s fees and costs from the employer.
Why Employers Should Care: Nevada courts and the Nevada Legislature strongly disfavor noncompete agreements, and now employers can be liable for their former employees’ attorney’s fees and costs if they are forced to file an action challenging an unenforceable agreement.
How Employers Can Prepare: Employers should reevaluate their noncompete agreements and make sure they are not applying covenants to hourly wage employees. Employers should also become aware of the requirements of NRS 613.195(2)(a)-(c) so they do not needlessly attempt to enforce noncompete agreements against protected employees, thus opening themselves up to awards of attorney fees and costs.
AB 60 (effective May 21, 2021) – Contracts and Settlement Agreements
Effect: AB 60 voids clauses in contracts and settlement agreements prohibiting a settling party from testifying about alleged sexual harassment, discrimination, criminal activity, or retaliation for reporting discrimination. The legislation expands upon the current law, NRS 10.195, which already voided such restrictions in settlement agreements under more narrow circumstances.
Why Employers Should Care: Provisions of this nature are common in many contracts, and especially common in settlement agreements, so employers need to be aware that they will no longer provide the same level of protection.
How Employers Can Prepare: Employers should review contracts or settlement agreements entered into after May 21, 2021 and be aware that any such provisions restricting applicable testimony, are no longer enforceable. Settlement agreements and contracts should not contain these types of provisions moving forward.
SB 209 (effective June 9, 2021) – Paid Leave
Effect: Nevada implemented mandatory paid leave on Jan. 1, 2020 via SB 312, which required employers with more than 50 employees in Nevada to provide paid leave to their employees. Under SB 312’s accrual method, an employee working a standard 40- hour workweek would accrue approximately 40 hours of paid leave annually. SB 209 modifies and clarifies the requirements of SB 312. Notably, AB 209 requires employers to provide paid leave to receive COVID-19 vaccinations (two hours for single dose vaccination, four hours for two-dose vaccination). AB 209 also clarifies that paid leave must be available to employees for “any” use, including treatment of an injury or illness, caregiving, or receiving preventative care.
Why Employers Should Care: SB 209 requires employers with more than 50 employees in Nevada to provide up to four hours of paid leave for COVID-19 vaccinations. This is a new requirement. Employers must maintain a record of employees’ receipt or accrual and use of vaccination leave for a period of one year and make those records available for inspection on request from the labor commissioner’s office.
How Employers Can Prepare: Ensure personnel administering leave are aware of the changes to the existing paid leave law and are prepared to approve leave according to its requirements.
AB 190 (effective Oct. 1, 2021) – Kin Care
Effect: Employers that provide paid or unpaid sick leave to employees must now allow employees to use a portion of that accrued leave to care for an immediate family member with an illness, injury, medical appointment, or other authorized medical need (“kin care”). Employers may limit the amount of sick leave an employee may use for kin care to an amount which is equal to the amount of sick leave that the employee accrues during a six-month period. For example, if an employee accrues approximately 40 hours of sick leave per year, an employer may limit the employee to 20 hours of kin care. Employers whose employees are covered under valid collective bargaining agreements are exempted from the new requirements.
Why Employers Should Care: AB 109 empowers the Labor Commissioner to enforce its provisions, as well as to refer alleged violations to a district attorney or the attorney general for prosecution. Violators are also guilty of a misdemeanor and subject to an administrative penalty of up to $5,000 for each violation.
Employers that provide sick leave should be aware of the law’s requirements to avoid incurring a penalty if they refuse an employee’s request for sick leave that may fall under the law. “Immediate family” here is broadly worded to include “child, foster child, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent of an employee or any person for whom the employee is the legal guardian,” so employers should be aware that employees may request such time for some individuals beyond the nuclear family.
How Employers Can Prepare: Employers should update their sick leave policies to reflect that such leave may be used for the care of an immediate family member. If an employer wishes to restrict the amount of kin care within the statutory bounds (an amount which is equal to at least the amount of sick leave that the employee accrues during a six-month period), the policy should be clear as to that restriction.
SB 327 (§ 1-6, 8.5-22, 24 and 25 effective June 2, 2021; § 7, 8, and 23 effective Oct. 1, 2021) – Discrimination
Effect: SB 327 amends Nevada antidiscrimination laws to define discrimination on the basis of race as including discrimination on the basis of traits associated with race, such as hair texture and protective hairstyles. Protective hairstyles include natural hairstyles, afros, bantu knots, curls, braids, locks and twists. Prior case law did not always recognize claims on the basis of such traits. Notwithstanding these protections, employers may enforce health and safety requirements set forth in federal and state law.
Why Employers Should Care: Many employers have dress code and grooming policies, some of which may prohibit certain hairstyles. If the hairstyles prohibited are protective or otherwise considered a trait associated with race as defined in SB 327, employers will likely face liability under antidiscrimination statutes.
How Employers Can Prepare: Employers should incorporate the amended definitions of race and traits associated with race, for the purposes of relevant antidiscrimination policies, to reflect the inclusion of hair texture and certain protective hair styles under these definitions. Employers also should review current dress code and grooming policies and revise them if necessary.
AJR10 (if passed by electorate in 2022, effective July 1, 2024) – Minimum Wage
The 2019 legislative session passed AJR10 for the first time and AJR10 was passed again this session, giving the bill the two successive approvals required to put it on the ballot in 2022. This law would change Nevada’s current minimum wage rate and structure quite dramatically. Employers need not be aware of the nuances of these changes, but should be aware that a change could be coming to the way the state’s minimum wage is determined and who earns such a wage. If AJR10 is passed by Nevada voters in 2022, it would go into effect July 1, 2024, so employers have ample time to prepare for any potential changes.
Connor Kridle contributed to this article.
