Service and Emotional Support Animals: Public Spaces

By Jennifer McMenomy

Part II

In recent years, there have been many changes made in public spaces such as restaurants, movie theaters, retail stores, and airlines to allow for emotional support animals.  In last month’s article, we discussed the difference between a service animal and an emotional support animal for the purposes of private and semi-private places such as dwellings, timeshares, apartment complexes, and hotels.  This article addresses service and emotional support animals in public places.

Under the Americans with Disabilities Act (ADA), a place of public accommodation is required to allow a “service animal” which is defined as an animal that has been individually trained to do work or perform tasks for an individual with a disability.  The ADA generally contemplates service animals as being dogs but does not specifically eliminate other forms of service animals.  In general, businesses that serve the public are required to have a policy in place that allows a person with a disability to have a service animal to accompany them while engaging in business at the place of accommodation.  Under the ADA, an emotional support animal who provides comfort to a person with a mental disability does not fall under the qualification of a “service animal” at this time.

The ADA requires that service animals be harnessed, leashed, or tethered, unless the device interferes with the animal’s work or the individual’s disability prevents them from using these devices.  Individuals who cannot use such devices must maintain control of the animal through voice, signal, or other effective controls.  Businesses may exclude service animals only if: 1) the animal is out of control and the handler cannot or does not regain control; or 2) the animal is not housebroken.  If a service animal is excluded, the individual must be allowed to enter the business without the service animal. 

Though a business owner is not permitted to insist on proof of certification of the service animal prior to allowing the person with the disability access to the business with the animal, a business owner is permitted by the ADA to ask the person with the service animal if the presence of the animal is necessary because of a disability.  Generally, good indicators of a service animal are special collars, harnesses, or other insignia (although, not all service animals wear those indicators).  A business owner should craft a written pet policy for their business which allows for service animals and creates clear guidelines for employees to follow if a patron of their business requires a service animal to accompany them.

Recently in the news, there have been reports of strange emotional support animals such as squirrels and peacocks aboard commercial airline flights.  In 1996, the Department of Transportation (DOT) promulgated a regulation providing policy guidance concerning service animals in air transportation and adding to the Air Carrier Access Act (ACAA).  The DOT redefined a “service animal” as “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability.  If the animal meets this definition, it is considered a service animal regardless of whether it has been licensed or certified by a state or local government.”  At that time, the DOT made it clear that animals who assist persons with disabilities by providing emotional support qualify as a service animal, therefore allowing them on airlines.  However, documentation may be required of passengers needing to travel with an emotional support or psychiatric service animal.

Airlines are permitted to exclude certain animals on the following basis: 1) Animals that are too large or heavy to be accommodated in the cabin; 2) pose a direct threat to the health and safety of others; 3) cause a significant disruption of cabin service; or 4) are prohibited from entering a foreign country. 

While an airline cannot require a patron to pay an additional fee or cost in the event that they have a service or emotional support animal with them onboard, airline carriers are allowed to create their own policy with regard to emotional and service animals so long as they do not violate ADA and DOT regulations. Most major airline carriers require passengers with emotional support animals to provide proper documentation completed by a medical professional acknowledging that the passenger has a mental or emotional disability recognized by the Diagnostic and Statistical Manual of Mental Disorders and are in need of this emotional support animal. 

In the past, airlines have allowed a wide array of unique emotional support animals on planes such as pigs, horses, turkeys, and monkeys; however, with recent problems stemming from emotional support animals on planes and in airports, airlines are beginning to change their policies.  Recently, a five-year old girl was mauled at the gate of an Alaska Airlines flight by an emotional support pit bull.  Alaska Airlines and the airport where the incident occurred are facing litigation by the girl’s family on her behalf.  American Airlines is now requiring vaccination records of all emotional support animals and has restricted their emotional support policies only to include dogs or cats, and in rare cases, a miniature horse.  It appears that other commercial airline carriers are following suit.  It is important as a patron of an airline looking to travel with an emotional support or service animal to check the specific airline’s policy before flying and to comply with those policies.

It is unclear what future changes will be made to provide for service and/or emotional support animals in public spaces as the law and administrative policies are ever-evolving. If you are a business owner looking to draft or revise your animal policy, it is important to confer with legal counsel to ensure that you and your employees are properly handling service and emotional support animals in compliance with the ADA.

See the article at: NNBV.

Service and Emotional Support Animals: What Property Owners Need to Know

Part I

By Jennifer McMenomy

For many, the difference between a service animal and an emotional support animal can be confusing. Business owners who operate residential properties must understand the difference in order to determine if they can rightfully exclude animals. Additionally, it is necessary to distinguish whether the Fair Housing Act (FHA) or Americans with Disabilities Act (ADA) applies to a semi-residential property, such as a timeshare or hotel. This distinction is dependent on the character of the unit’s use, nature and extent of use, and transiency of residents or guests on the property. If the nature of the residential use is akin to a “vacation home,” FHA will apply. If the character of the use is closer to that of a hotel or motel, ADA will apply. Similarly, Nevada law generally aligns with federal law.

1. FHA and ADA Service Animal Definitions

The FHA requires housing providers to make reasonable accommodations in rules, policies, practices or services to allow people with disabilities to enjoy a dwelling unit. In 2013, the Department of Housing and Urban Development (HUD) declared that housing providers are required to make reasonable accommodations for emotional support animals if 1) the resident has a disability (mental or physical that substantially limits one or more major life activities) and 2) the animal provides assistance to that person.

The ADA is more stringent about what constitutes a “service animal “and states that it is unlawful to refuse a service animal in a place of public accommodation. A service animal under the ADA is defined as an animal that has been individually trained to do work or perform tasks for an individual with a disability. The ADA does not apply to emotional support animals in general; however, the ADA does make a distinction between psychiatric service animals and emotional support animals.

Under the ADA, a place of public accommodation is required for a service animal unless: 1) the animal is out of control and the handler does not take effective action to control it or 2) the animal is not housebroken.

2. Does the FHA apply?

Within the jurisdiction of FHA, a “dwelling” is defined as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.” While it would appear this excludes a hotel, timeshare, or short-term rental, the Courts have determined a number of factors to determine what a “dwelling” means under the statute.

In Schwarz v. City of Treasure Island, the Eleventh Circuit Court of Appeals identified two principles for determining a dwelling:

1) the more occupants treat a building like their home-e.g., cook their own meals, clean their own rooms and maintain the premises, do their own laundry, and spend free time together in common areas-the more likely it is a ‘dwelling’; and 2) the longer the typical occupant lives in a building, the more likely it is that the building is a ‘dwelling’.

3. Does the ADA Apply?

In general, the ADA does not apply to “a lodging with less than five (5) rooms for rent or hire that is occupied by the proprietor.” However, case law suggests that if the accommodation is similar to or like a hotel it will fall under the ADA. Individually-owned residential condo units are generally not considered public accommodations under ADA; however, if a condominium complex is generally indistinguishable from a hotel, they will be subject to ADA.

While this general rule is from an unpublished decision from the Southern District of Florida, it is similar to case law determining whether the FHA applies. the nature of the complex and whether the character of the association is akin to a residence or a hotel will likely by determinative. It is therefore likely, if the FHA applies, the ADA will not apply and vice-versa.

4. Nevada Discrimination in Housing

Nevada Revised Statutes (NRS) define a “dwelling” to mean “any building, structure or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure or portion thereof.”

NRS provides that a landlord cannot refuse to rent a dwelling to a person with a disability if the service animal “assists, supports or provides service to the person with a disability.” However, NRS does allow a landlord to ask for documentation.

Ultimately, the characterization of the type of housing will depend on the nature and extent of the use as well as the character of that use in order to determine which law applies. It appears that under all laws, the operator of the property is permitted to request proof and/or documentation to substantiate the claim that an animal is a service or support animal. For individuals utilizing service animals, it is important to ensure your animal is fully compliant and properly designated. Likewise, if you are a property owner who is considering excluding animals, it is vital to confer with legal counsel to discuss the specific ramifications of excluding animals from your property as the applicable provisions are extremely nuanced.

See the article: NNBV

Honored for 40 Years of Service

On December 12, 2018, Allison MacKenzie Attorneys, Joan Wright and Mike Pavlakis were honored by the Washoe County Bar Association (WCBA) for their length of service. The two were admitted to practice in Nevada in 1979, and been active members in WCBA for at least 10 years.

The WCBA was established in 1905 for the purpose of encouraging the practice of law as a profession, promoting justice and serving the practice of law in our community. The organization currently has over 1,200 members in the Northern Nevada area.

See the article.

Local Attorneys Mentoring the Next Generation of Legal Eagles

Each year over 30,000 students participate in local high school mock trial competitions throughout the United States, Guam, South Korea, and the Northern Mariana Islands.

The State Bar of Nevada provides mentoring for high school mock trial teams throughout the State that compete at the regional and statewide level. The Bar’s statewide program is administered by a volunteer Mock Trial Committee, with assistance from the Washoe County Bar Association.  The top team advances to the National High School Mock Trial Championship.

The program is supported by the Nevada Bar Foundation and an endowment made on behalf of attorney Charles Deaner.  Deaner was an ardent supporter of law-related education and the Mock Trial program. He established a living trust to ensure the continued support of this endeavor. The Nevada State championship round is named in his honor.

Local attorneys, Jennifer McMenomy and Emilee Sutton, associates at Allison MacKenzie Law Firm have volunteered to mentor members of Carson High School’s Mock Trial Club. The two attorney coaches, along with a supervising Carson High School teacher, educate the students about legal processes and courtroom etiquette including: adversarial procedures, rules of evidence, examination of process and more. The program helps participants develop the tools and techniques needed to become effective litigators and worthy competitors in the courtroom.

In November Jennifer and Emilee began meeting with participants to explore facts and procedures regarding a civil case. Weekly, during a course of a few hours, the coaches, teacher and nine students delve into a case that focuses on religious discrimination.

Jennifer said, “Mentoring these kids is truly an enjoyable experience. I just love seeing the students get involved, and appreciate their enthusiasm about future legal careers.  There is this “lights on” moment when they understand principles such as hearsay and what is admissible into court that is irreplaceable.”

Jennifer and Emilee have enjoyed the experience so much that they have committed to mentoring the club again next year.

“They learn what lawyering is all about. How court actually works and the legal process. I participated in mock trials when I was in high school, and it is fun to see it from the other prospective of mentoring. I love being involved with the kids,” Emilee stated.

This year marks Nevada’s 21st year of participation in the High School Mock Trial program. Regional and State Competitions dates are:

Southern Nevada Regional
February 9, 2019Regional Justice Center, Las Vegas

Northern Nevada Regional
February 22, 2019Federal Courthouse, Reno

State Competition
March 15-16, 2019Federal Courthouse, Reno

To learn more about the High School Mock Trial Program visit:

Allison MacKenzie Law Firm announces new shareholder Justin Townsend

Justin Townsend to join ranks of distinguished attorneys

Allison MacKenzie Law Firm is pleased to announce the appointment of Justin Townsend as its newest shareholder effective January 1, 2019.

Justin joined the firm as an associate in 2013 and focuses his practice in the areas of administrative law, business law, real estate law, and natural resource law.

ustin is a Brigham Young University graduate and obtained his law degree from J. Reuben Clark Law School of Brigham Young University in 2010. He was admitted to practice law in Texas in 2010 and Nevada in 2011. He is fluent in Spanish and currently resides in Minden with his family.

Regarding his recent promotion, Justin said, “I am excited and honored to join such distinguished and community-minded attorneys. My family is equally enthusiastic about this opportunity and thrilled to be a part of the Allison MacKenzie organization. I look forward to providing effective legal counsel for our clients for years to come.”

“Justin is a great lawyer and a better person. We are thrilled to have Justin and the entire Townsend family as part of the Allison MacKenzie family,” said James R. Cavilia, managing shareholder with Allison MacKenzie.

The talented legal team and professional staff of Allison MacKenzie is pleased to welcome Justin as a shareholder and look forward to his continued success in providing exceptional counsel to clients, contribution to the growth of the firm, and dedication to the betterment of the community and its residents.

For more information, contact Allison MacKenzie Law Firm at 775.687.0202, or visit www.AllisonMacKenzie.com.

The Right of Employees to Bring Lawsuits for Unpaid Wages:

What Every Business Should Know.

By Emilee Sutton

On December 7, 2017, the Nevada Supreme Court issued a decision settling a previously unanswered question under Nevada law that directly impacts Nevada employers; namely, whether employees have a private right of action against their employers to recover unpaid wages under Chapter 608 of the Nevada Revised Statutes.  The Court answered that question in the affirmative and clarified years of conflicting caselaw and ambiguity.

            Chapter 608 of the Nevada Revised Statutes governs the payment and collection of wages, as well as other benefits of employment.  Specifically, NRS 608.016 governs the failure to pay overtime wages, NRS 608.018 governs the failure to timely pay all wages due and owing, and NRS 608.020 through 608.050 govern payment upon termination.  In addition, NRS 608.180 specifically grants the Labor Commissioner power to enforce the professions described in NRS 608.005 to 608.195.  However, the wage and hour statutes are silent as to whether an employee has a private right of action to enforce their terms.

            Under Nevada law, if a statute does not expressly mention whether an individual may privately enforce one of its terms, an individual may only pursue his or her claims if a private right of action is implied.  In the case of Baldonado v. Wynn Las Vegas, LLC, the Nevada Supreme Court examined whether NRS 608.160, which prohibits employers from taking employee tips, implies a private cause of action to enforce its terms.  The court concluded that, “in light of the statutory scheme requiring the Labor Commissioner to enforce the labor statutes and the availability of an adequate administrative remedy for those statutes’ violations, the Legislature did not intend to create a parallel private remedy for NRS 608.160.”  Thus, the court found “appellants…failed to overcome the presumption that no private cause of action was intended.”  However, in a footnote, the Baldonado court opined, “a private cause of action to recover unpaid wages is entirely consistent with the express authority under NRS 608.140 to bring private actions for wages unpaid and due.”

            In relevant part, NRS 608.140 provides that “[w]henever an…employee shall have cause to bring suit for wages earned and due according to the terms of his or her employment, and shall establish by decision of the court or verdict of the jury that the amount for which he or she has brought suit is justly due,” the court shall allow the plaintiff to recover reasonable attorneys’ fees incurred for bringing suit, along with the amount found due for wages and penalties.  In light of the Baldonado footnote, employees bringing suit for unpaid wage claims against employers in district court attempted to bootstrap a private right to enforce other provisions of Chapter 608.

            The Baldonado footnote spawned significant discussion by courts and resulted in conflicting decisions.  For example, the United States District Court for the District of Nevada found that “§608.140 does not imply a private right of action to enforce the labor statutes…Instead, §608.140 implies a private right of action to recover in contract only.” 

In a separate case, the court also found, “NRS 608.140 does not create a vehicle for privately enforcing the legal rights conferred by the other provisions of Chapter 608; it merely establishes a fee-shifting mechanism in an employee’s ‘suit for wages earned and due according to the terms of his or her employment.’” 

             Nearly ten years after Baldonado was decided, the Nevada Supreme Court finally put the issue to rest when John Neville, Jr. filed a petition for a writ of mandamus challenging the district court’s dismissal of his NRS Chapter 608 wage claims on the basis that no private right of action exists.  Mr. Neville was employed as a cashier at a Las Vegas convenience store owned by Terrible Herbst, Inc.  Terrible Herbst enforces a time-rounding policy whereby it rounds the time recorded and worked by all hourly employees to the nearest 15 minutes for the purposes of calculating wages.  As a result of the time-rounding policy, Mr. Neville alleged he did not receive wages for work actually performed. 

            On appeal, the Nevada Supreme Court discussed the Baldonado footnote and found that NRS 608.140 demonstrates the Legislature’s intent to create a private cause of action for unpaid wages. The Nevada Supreme Court stated, “[i]t would be absurd to think that the Legislature intended a private cause of action to obtain attorney fees for an unpaid wages suit but no private cause of action to bring the suit itself.” Because Neville’s Chapter 608 claims involved allegations that wages were unpaid and due, and he tied his Chapter 608 claims with NRS 608.140, the Nevada Supreme Court found Neville properly stated a private cause of action for unpaid wages. 

             In light of the Nevada Supreme Court’s decision in the Neville case, there will likely be increased numbers of employees bringing civil lawsuits – including class actions – in Nevada courts for unpaid wages and attorneys’ fees.  Because of the unknown outstanding financial obligation to employees and the significant costs of litigation, it is crucial that Nevada employers comply with Nevada’s wage and hour requirements.  Employers are advised to consult with qualified legal counsel to ensure the adoption of policies and practices that comply with NRS Chapter 608.

See the article at NNBV.

Mandatory Arbitration Clauses Within Contracts

What They Are and How They Are Enforced!

by Jennifer McMenomy

In general, when parties enter into a contract, they do not contemplate potential legal disputes arising in the future. However, it is important for parties to outline how they will handle a contractual dispute if one does occur. Including an arbitration clause in a contract will help to eliminate some of the litigation costs and uncertainties that may transpire if a dispute over a contract should develop.

A mandatory arbitration clause is a provision contained within a contract that states that all legal disputes between the parties to the contract will be settled through the process of arbitration. Arbitration clauses are very common and can be found in various types of business contracts including: purchases for goods or services, employment contracts, construction contracts, etc.
Many sophisticated parties and businesses include a mandatory arbitration clause in their contracts because it enables them to settle legal disputes regarding the contract quickly, quietly and without the expense of litigation.

Arbitration is the process of settling a legal dispute between two or more parties using an impartial third person. Therefore, if a dispute arises regarding a provision of the contract that cannot be resolved between the parties themselves, the parties will present their issues to an arbitrator, or neutral third party, instead of through traditional litigation proceedings.

There are many professional arbitrators and organizations that parties may choose from. Some of these specialize in the specific area of the law or business issue. The selection process may be (but is not necessarily) specifically included within the language of the arbitration clause. Generally, the arbitration clause will outline who pays for the arbitration, whether each pays half of the cost of the arbitrator and their own attorney’s fees or whether the non-prevailing party pays these expenses.

Generally, an arbitration clause will state where the arbitration will take place and what law will govern the dispute, should one arise. For instance, if a contract is entered into in Nevada, the arbitration clause will likely state that the contract dispute must be arbitrated in Nevada. It is very important to include within the mandatory arbitration clause, the state and/or location of where the arbitration must take place and the governing law within the arbitration clause to avoid confusion and conflict.

If there is not a specific provision within the contract regarding which law applies, then depending on the nature of the contract, the arbitration clause may be governed under federal or state law. The Federal Arbitration Act (FAA) governs agreements where the contract involves a transaction that crosses state lines, also known as “affecting interstate commerce.”
If the contract does not deal with interstate commerce, then state law will apply. There are several factors to take into consideration when determining exactly which state law applies; however, for the purposes of this article, it is assumed that Nevada law will apply to the arbitration clause.

If the arbitration provision in the contract is governed by Nevada law, there are some specific requirements that must be met before the provision is enforceable. Nevada Revised Statutes (NRS) Chapter 38 governs arbitration provisions within contracts. In Nevada, arbitration agreements between parties to a contract are favored as a matter of public policy because they allow for judicial economy and ease the burden of the courts.

While arbitration agreements are favored, Nevada law sets a higher standard of enforcement for arbitration clauses contained within contracts than most states and the FAA. NRS 597.995(1) requires “specific authorization” of the arbitration clause by each of the parties to the contract.

If “specific authorization” is not provided by the parties, it can render the arbitration clause void and unenforceable. If a mandatory arbitration clause is found to be unenforceable or void, a party can choose to litigate the dispute through the court system and is no longer bound by the contract to arbitrate its claims.

While the statute does not expressly state what “specific authorization” means, the Nevada Supreme Court has given some idea of what constitutes specific authorization under NRS 597.995(1). In Fat Hat, LLC v. DiTerlizzi (2016), the Court found that a signature of a party to the contract on the general signature line at the end of the contract did not meet the specific authorization requirement.

The Court found that, even though the arbitration agreement contained within the contract was right above the signature line, it did not constitute specific authorization. While this case is unpublished and therefore is not controlling in future cases, it may be persuasive as to how a court will view the statutory specific authorization requirement.

To ensure that Nevada’s specific authorization requirement is met, it is important that an agreement includes an additional signature or initial line directly below the arbitration clause to ensure that each party assents to the arbitration clause. By including an additional signature or initial line to the arbitration provision the “specific authorization” requirement will likely be met and ensure that the arbitration clause within the contract is enforceable.

  1. The take away…in order to ensure that an arbitration provision is enforceable, the contract must include the following:
  2. The arbitrator or group identified to arbitrate the dispute;
  3. Who will pay for the legal and arbitrator fees;
  4. The governing law that is to apply to the contractual dispute;
    A signature or initial line set apart from and directly below the arbitration provision to ensure that the “specific authorization requirement is met.”

It is recommended that you seek the assistance of knowledgeable legal counsel in developing and reviewing these clauses in order to protect the future of your business dealings should a conflict arise.

See the article at: Northern Nevada Business View.

Another Piece of Nevada is Lost

in memoriam…of Andrew MacKenzie

Andrew, better known as Andy, was born on his family’s ranch in Yerington, Nevada. He was the fourth of five children of Albert “Burr” and Marion, including Al, Fred, Madeline and Mary Lou.

Andy enjoyed his upbringing in Yerington, making friends, working on ranches, playing football, excelling in scholastics and having more than his share of fun. His accolades from high school included being elected Governor of Boys State and later being inducted into the Yerington High Football Hall of Fame.

Andy’s love of people, good grades and good times continued at the University of Nevada, where he met many more life-long friends as a member and president of Alpha Tau Omega, as Captain of the ROTC and as a member of various social organizations.

After the University, Andy attended and graduated Georgetown Law School in Washington D.C., married (LeeAnn), had a son (Chris), and then was off to serve for two years in the U.S. Army. There, while stationed in both El Paso, Texas and Homestead, Florida, he attained the rank of Captain.

Upon completing his obligations to Uncle Sam, Andy returned to Reno to commence his career as an attorney with the law firm of MacDonald Carano and have a daughter (Katie Paige). After a few years, he and his family relocated in 1972 to Carson City, where he was hired by the law firm of Laxalt, Berry and Allison, which he nurtured and helped lead to become the firm now known as Allison MacKenzie, Ltd.

Along the way, Andy’s love for Nevada and its people shined through. He was a President of the Carson City Rotary Club, a member of the University of Nevada Foundation, a Director on the Reno Rodeo Association, a member of the Nevada State Commission on Judicial Discipline, a Trustee of the Hop and Mae Adams Foundation, a Director on the Nevada Delta Iota Building Association, Wagon Master of Poor Man’s Bohemian Grove, and an officer of the Carson Valley Nut Club. Along the way, he did quite a bit of work behind the scenes for various causes.

Andy truly loved meeting people and getting to know their stories. His happiness and easy laugh were infectious. He loved Nevada, good country music, to spend time with family, to provide sage advice to clients and to throw great parties. He gathered a broad array of very good friends of all ages along the way, and met and married his wife, Karen Peterson, with whom he shared his later years and who provided amazingly loving care as the sun slowly set for him.

Andy is survived by his wife Karen, son Chris (wife Miya), daughter Katie Paige, grandchildren Walker and Reese, sisters Madeline and Mary Lou, as well as numerous nieces and nephews.

Emilee N. Sutton Joins Allison MacKenzie law firm as Associate Attorney

Allison MacKenzie Law Firm is pleased to welcome their newest associate attorney, Emilee N. Sutton. Emilee joined the firm on August 27, 2018 and will focus her practice on Administrative Law, Business Law, Probate, and Litigation. She is a former law clerk for the Honorable Lynne K. Simons at the Second Judicial District Court in Reno, and extern to the Honorable Howard D. McKibben, U.S. District Court, District of Nevada.

A California native, Emilee double majored in political science and history at the University of California in San Diego. Upon graduation she obtained her law degree from the University of Texas School of Law in 2017. She was admitted to practice in Nevada and the U.S. District Court, District of Nevada in 2017.

“Allison MacKenzie Law Firm is highly regarded by legal professionals throughout Nevada. Their professionalism and commitment to the community is unsurpassed. I couldn’t be prouder of my new position with such a well-respected and community-minded law firm,” Emilee commented.

Emilee was exposed to legal proceedings as a young child and was intrigued by the processes and complexities of the law. Emilee’s mother was a court reporter in Southern California, and it was here that Emilee “grew up.” She spent many days after school and during summer vacations watching court proceedings, learning from judges, and helping her mother prepare and proofread transcripts. Emilee is enthusiastic to embark on her legal career counseling clients and finding them effective solutions.
Emilee resides in Reno with her fiancé, Mitchell, and future step-son, Austin. The family recently adopted a chocolate lab named Murphy and are very busy with puppy and little-person duties. A former surfer and baseball aficionado, Emilee is looking forward to experiencing Northern Nevada’s fantastic outdoor activities.

The talented legal team of Allison MacKenzie is pleased to welcome Emilee to the organization. The firm is confident she will provide exceptional and compassionate service to clients.

Thought Leaders: Are your workers independent contractors or employees?

By: Jennifer McMenomy

Are Your Workers Considered Independent Contractors or Employees under Nevada Law for the Purposes of Payment and Collection of Wages and Other Benefits?

If you are an employer in Nevada, you know your employees are required to be paid a minimum wage for work performed, be provided certain insurance benefits depending on full or part-time status, be compensated properly for overtime, are allowed breaks, and other benefits. You may also know that if you engage independent contractors, these workers are not necessarily entitled to all the benefits afforded to those with an employee status. It is important for you, as an employer, to know the distinction between an independent contractor and an employee to protect your business from liability.

To establish an independent contractor relationship for the purposes of payment and collection of pay and other benefits, there is a relatively new law that has been enacted in Nevada to help employers and workers alike determine their role in the workplace. The determination that a worker is an independent contractor is dependent on several factors that have been enumerated within the law.

In June of 2015, Senate Bill 224 was signed into law. The bill created a “conclusive presumption” that a person is considered an independent contractor if that person meets certain criteria set forth under the law. A “conclusive presumption” requires a court to presume an issue or fact is true notwithstanding evidence to the contrary. Therefore, if a court makes a conclusive finding that a worker is an independent contractor, the worker will not be able to provide evidence to the court opposing that finding.

Under S.B. 224, codified at NRS 608, a person is conclusively presumed to be an independent contractor for the purposes of Nevada Revised Statutes (NRS) Chapter 608—Provisions Governing Payment and Collection of Wages and Other Benefits– if the following requirements are met:

a. The person must not be a foreign national and must be legally present in the United States;

b. The person is required, under their contract with the principal, to hold necessary state or local business licenses and maintain any necessary occupational licenses, insurance or bonding; and

c. The person meets three or more of the following requirements:

1. The person has control over the means and manner of the performance of the work they do and the result of that work;
2. The person has control over the time in which the work is performed (an exception is made here with respect to agreements with a principal regarding completion schedule, range of work hours, and/or for those performing as entertainers);
3. The person is not exclusively required to work for the principal unless the law or a regulation requires exclusivity, and/or the agreement provides for exclusive services for a limited period;
4. The person can hire employees to assist with the work;
5. The person contributes a substantial investment of capital in the business of the person, for instance the purchase of tools and equipment, and/or the person asks for permission from the principal to access the work space from the principal and/or leases the work space from the principal.

For the purposes of this article, the principal is the person who engages another to do any work.

If a person does not meet three or more of the requirements of section (c), that does not mean they will be considered an employee, rather there will be no conclusive presumption made regarding the person’s status as an independent contractor. A finder of fact, meaning a judge or jury depending on the proceeding, will have to determine whether the worker is an independent contractor or an employee under the law.

In interpreting the factors presented in NRS 608, the important word to keep in mind is control. Does the worker or the principal (employer) have control over the timing and the manner in which the work is performed? Does the worker or the principal have control over the materials, tools, and space in which the person is working? Who has control over the financial aspects of the tasks to be performed? Does the worker have the freedom to perform work for a different entity while also working for the principal? If the general answer is that the worker has the control over those aspects, it is likely that the person will be deemed an independent contractor under the law.

Please note that the conclusive presumption of an independent contractor under NRS 608 only applies to Nevada’s wage and hour and benefits laws. The tests for determining whether someone in an independent contractor for the purposes of unemployment, the Nevada Industrial Insurance Act (NIIA), and for tax purposes can be found in other places within the Nevada Revised Statutes and the Federal Tax Laws.

As always, it is of the utmost importance for business owners to have a signed, written agreement with independent contractors that outlines their duties, responsibilities, and the expectations of the task or job to be performed. Be aware, however, that merely classifying a worker as an “independent contractor” in an agreement or contract will not be conclusive as to whether that worker is indeed an independent contractor or employee under the law.

See the Article at NNBV

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