Legislative Changes to the Nevada Equal Rights Commission Procedures and Remedies: An Employer’s Guide

by Jennifer McMenomy

NERC is part of the executive branch of the Nevada Government and was given the authority to investigate complaints of unlawful discriminatory employment practices in its enabling statute Nevada Revised Statute (NRS) Chapter 613.  Pursuant to NRS 613.330, an employer has engaged in an unlawful employment practice if an employer fails, refuses to hire, discharges or otherwise discriminates against a person with respect 1) compensation; 2) employment terms; and/or 3) conditions or privileges of employment on the basis of  his or her race, color, religion, sex, sexual orientation, gender identity or expression, age, disability, or national origin.

Generally, once a complaint of unlawful employment practice is filed with NERC, the administrative body will determine whether the allegations contained in the complaint, if true, support a finding of an unlawful employment practice.  If NERC finds that the alleged facts indicate a discriminatory practice, NERC will determine the need for an informal meeting to attempt settlement of the dispute between the employer and the employee.  If an agreement is not reached at the informal meeting between the employer and employee, NERC will launch a formal investigation into the allegations contained in the complaint.  If the formal investigation concludes that the employer engaged in an unlawful employment practice, NERC and its administrator will hold a formal mediation between the employer and employee.  If the mediation results in an agreement between the parties and the employer immediately desists in the unlawful employment practice, NERC will not take any further action with regard to the complaint.  If the mediation fails, NERC may hold a public hearing on the matter to determine whether an unlawful employment practice has occurred.

The Nevada Equal Rights Commission (NERC) is an administrative body that handles employment discrimination complaints as part of Nevada’s Equal Employment Opportunity Program.  For the purposes of this article, we will look only to Nevada’s employment discrimination laws and the purview of NERC to enforce those laws with particular attention to revised Nevada law that will be effective in 2020.  As an employer, it is also important to be aware that there are separate federal laws that prohibit unlawful discrimination and various federal agencies that enforce those laws.  An employer must be in compliance with both the federal and state laws regarding this issue.

After the hearing, if NERC has determined that an unlawful employment practice has occurred, the administrative body previously only had the ability to 1) order the employer engaging in the practice to cease and desist; and/or 2) restore all benefits and rights of a complainant including but not limited to rehiring, back pay, leave, other fringe benefits, and seniority with interest at the prime rate from the date of NERC’s opinion.

In the most recent Legislative Session (2019), Senate Bill (SB) 166 made significant changes to NERC’s authority.  Sponsored by several Senators and spearheaded by Senator Pat Spearman, SB 166 gives NERC greater authority to assess penalties for unlawful discriminatory employment practices.  SB 166 allows NERC to award lost wages that would have been earned by an employee if an employer is found to have discriminated against the employee on the basis of sex. In other words, if an employer is found to have discriminated against the employee because of the employee’s gender, NERC may award that employee lost wages that would have been earned by the employee.  The period of back pay awarded by NERC may not be for more than two years prior to the filing of the Complaint with NERC and must end on the date in which NERC issues its determination.

SB 166 also provides that if an employer of a specific size (50 or more employees) is found by NERC to have engaged in an unlawful employment practice, NERC may fine that employer as follows:

            1) For the first willful unlawful employment practice that an employer engaged in during the immediately preceding five years, the employer may be fined up to $5,000.00.

            2) For the second willful unlawful employment practice that an employer engaged in during the immediately preceding five years, the employer may be fined up to $10,000.00.

            3) For the third and any other subsequent unlawful employment practice that an employer engaged in during the immediately preceding five years, the employer may be fined up to $15,000.00.

            SB 166 provides that an unlawful employment practice is considered to be willful “if a person engages in the practice with knowledge that it is unlawful and or with reckless indifference to whether it is lawful or unlawful.”  Thus, an employer must actively and knowingly engage in the discriminatory practice in order for fines to be assessed by NERC.

In order for NERC to successfully impose the fines, it must allow the offending employer 30 days to take corrective action from the date of service of the order issued after the hearing.  The corrective action to be taken by the employer must be outlined in the order issued by NERC.  If corrective action is taken by the employer in this time period, NERC is not permitted to impose a penalty on the employer.  The fines and penalties imposed must be deposited with the State Treasurer and will go into the State General Fund.

If, on the other hand, NERC concludes that the employer did not engage in an unfair labor practice, SB 166 requires NERC to issue a letter to the complainant notifying them of its decision and the complainant’s right to pursue the action in Court.

SB 166 was passed by both houses of the Nevada State Legislature and was signed into law on June 13, 2019.  The law will become effective on January 1, 2020.  Such changes made at the state and federal level are complicated and nuanced.  It is advised that employers consult with competent, experienced legal counsel to ensure they understand the complexities of the various discrimination laws, and how they impact overall employment practices. 

See the article at: NNBV