Allison MacKenzie Nominated in NNBW Best in Business Awards

We are so honored to be nominated alongside so many of the talented firms in our area in the NNBW Best in Business awards! To read our nomination and to cast your vote, click here.
https://www.nnbw.com/bestinbusiness2020/#/gallery/247930773?group=354549

 

 

 

 

 

By: Joel W Locke
jlocke@allisonmackenzie.com
775.687.0202

With the future seeming to grow more uncertain with each passing day, now is the time to take a fresh look at your current estate plan. For those unfamiliar with the concept, estate planning is the advance preparation for how a person’s assets will be managed and distributed in the event of incapacity or death.  An estate plan will often include several key components including a Trust, a Will, Powers of Attorney and Medical Advanced Directives.

When it comes to making sure that a spouse inherits your assets, the process is typically straightforward and joint tenancy can be utilized.  Further, there is no tax to a surviving spouse because there is an unlimited marital deduction provision in the United States Estate and Gift Tax Law. The law provides the passage of assets to a surviving spouse with no gift or estate tax liabilities.

Different people have different reasons for creating an estate plan. From ensuring minor children will be cared for in the cases of unexpected incapacity or death, to making sure a family business will remain operational, creating an estate plan is imperative.

Use a Will or Trust

With an estate plan, the two biggest tools to direct the handling of your assets will be a trust and a will.  While both deal with the management of assets after death, they have several key differences.

Will

A will is a legal document that states how your assets will be distributed after death.  It also may  include instructions, such as funeral arrangements or guardianship of minor dependents. These instructions are then carried out by your designated personal representative.   A validly executed will is legally enforceable but has one major limitation: it must be submitted and probated in the District Court.  Probate is the process for proving-up and distributing assets under a Last Will and Testament and is costly, time consuming and public.  This process can be quite tedious and cause a financial hardship on both the heirs and the personal representative.

Trust

A revocable living trust is another estate planning tool in which individuals, either married or single, can designate how assets will be distributed during one’s life as well as at the time of their deaths.  This form of trust is created while the trustor is still alive and will have full control over the trust and its assets until death.  The key benefit of this form of estate transfer is that it completely avoids probate court and can remain completely private.  A successor trustee who is chosen by the trustor during their lifetime has the authority to distribute the trust assets pursuant to the written directions in the trust.  The process for administering a trust is generally less time consuming and much less expensive than probate. Trusts can be modified at any time during the lifetime of the trustor and are a useful tool for ensuring your loved ones are provided for after your death.

No matter what tool or tools you want to use for estate planning, the correct management of your estate after death will require an experienced lawyer. Allison MacKenzie attorneys have experience in estate planning law including all aspects of the accumulation, preservation, and distribution of wealth. Individuals, families and businesses that are facing the challenges of succession planning can rely on our considerable experience in drafting wills, trusts, and offering general estate planning advice. For any questions regarding estate planning, please contact Allison MacKenzie at 775.687.0202.

Works Cited:

Fletcher, C. (2020, April 15). 6 Parts Of Your Estate Plan You Should Review Now. https://www.forbes.com/sites/christinefletcher/2020/04/15/6-parts-of-your-estate-plan-you-should-review-now/.

Kagan, J. (2020, January 29). Estate Planning. https://www.investopedia.com/terms/e/estateplanning.asp.

Jarrell, M. (2020, April 14). Will vs. Trust: What’s the Difference? Investopedia. https://www.investopedia.com/articles/personal-finance/051315/will-vs-trust-difference-between-two.asp

By Jennifer McMenomy
jmcmenomy@allisonmackenzie.com
775.687.0202

There is a growing trend in the United States wherein couples above the age of fifty years of age are divorcing.  Over a decade of data suggests that “gray divorce”, or the divorce of people mature in their age and/or marriage, is on the rise.  The increasing frequency of gray divorce has become somewhat of a public concern for sociologists, who attribute the rise in gray divorce to people living longer and the fact that many families are now dual income, allowing spouses to be financially independent from one another.  If you are contemplating a divorce from a partner to whom you have been married for several years, there are certain issues to keep in mind when entering into the process:

Pre-and Post-Nuptial Agreements: A prenuptial agreement is an agreement made by a couple before entering into marriage to characterize ownership and title of respective assets.  A postnuptial agreement is the same type of agreement that occurs sometime during the marriage.  In Nevada, so long as such an agreement follows certain requirements, that agreement will control the dissolution of the marriage and determine which party receives an asset.  It is important to provide a copy any such agreement to your attorney at the outset of the divorce to ease the process.

Assets and Finances: As previously discussed, a gray divorce will likely include parties that have been married for many years and will most likely have jointly held assets and commingled finances.  The unwinding and recharacterization of these assets may take longer to accomplish.  It is important to note that Nevada is a community property state and as such, divorce courts seek to accomplish an equitable division of all marital property in a fifty-fifty split.  If the parties’ assets are substantial, it may become necessary to employ an accountant to properly classify all property.

Retirement: As with other assets, retirement funds and pensions are considered community property in a divorce.  A divorce attorney should take great care in handling the division of retirement assets to ensure that retirement savings are not depleted early and that individuals are set up for retirement.

Social Security Benefits: Receiving Social Security benefits may become more complicated when going through a divorce at an advanced age.  Generally, benefits are based upon an individual’s income.  It is important to understand what your status for receiving benefits will be post-divorce.

Estate Planning: Generally, couples that have been married for several years would have executed an estate plan together.  After the dissolution of a marriage, the character of assets that were once considered marital property—such as the family home will change in ownership.  As such, it is important to update any estate planning documents that may have been executed during the marriage to ensure that no legal trouble arises upon the death of either party.

Settlement: If you and your partner are amicable and wish to resolve the divorce in a cooperative manner, it is important that you sit down with your partner to determine whether you can work out an agreement as to the character of assets prior to proceeding with a complicated divorce process.

Divorce is a complicated and emotional process. The attorneys at Allison MacKenzie are dedicated to providing our clients with personalized service and can assist you in navigating the complex legal landscape of obtaining a divorce. For any questions regarding divorce, please contact Allison MacKenzie at 775.687.0202.

By Allison MacKenzie

A human resource (“HR”) department can be vital to a growing company. An HR department is responsible for many functions within an organization. These functions can include managing the employee life cycle (recruiting, hiring, development, retention, separation), administering compensation and benefits, creating policies and training programs, and ensuring compliance with federal and state laws. Whether a business does or does not have an HR department, it is of vital importance that each business implement HR policies and procedures for employees in order to comply with local, state, and federal law.  The attorneys at Allison MacKenzie have compiled a general overview of areas an employer should consider when establishing these policies and procedures.

Staffing Profiles

A staffing profile or employee profile outlines the expectations, necessary skills, and key competencies for any given role within an organization.  Creating a profile for each role within your company and the person who currently fills it will assist with keeping track of roles, designated tasks, obligations, strengths, areas of improvement, etc. A company can choose to include as much or as little information as it deems necessary.  A company can refer to this information in order to make a number of decisions including promotions, designations of tasks, and discipline.

Staffing Plan

A staffing plan can help a growing company determine the workforce and budgetary requirements for its current and future business objectives. If applicable, consulting with various department heads or teams to develop a staffing plan can help inform both short- and long-term staffing needs. Having a current and accurate staffing plan allows a company to review what its departments’ projected staffing needs will be at any given time. It is therefore imperative for a company to develop a staffing plan to determine where its current and upcoming hiring needs might be so that it can plan and budget accordingly.

Salary and Benefits

A salary structure document allows a company to manage its salary expenditure. It can also help in the retention of its current employees, as well as make recruiting, hiring and promoting efforts more focused and easier to execute. Having a salary structure document will enable a company to compare and contrast salaries with fair market value for similar positions, and it is also of the utmost importance that a company revise its salary structure once every six months to ensure that its business is staying competitive in the market. If your company offers other forms of compensation (such as health benefits, paid time off, stock options, profit sharing or a work-flex environment), these benefits should be separately documented and reviewed accordingly. If a company offers nontraditional benefits, such as the option to work from home, paid time off for volunteering, or a healthy living program that includes a gym membership, those benefits should be documented as well.

Employee Performance Evaluation

Evaluation of an employee’s performance is crucial., Employee Performance Evaluations allow a company to measure an employee’s work performance. Employee evaluation can also be used to gauge the amount of value added by an employee by looking at different factors including increased business revenue and overall employee return on investment (ROI). As mentioned above, job profiles can be used when evaluating employees to determine how each person measures up to their position expectations as outlined in the job profiles.  Evaluations may also assist in determining how job profiles might change. Employee evaluations are also a necessary way for an employer to ensure retention and address any staffing issues with the staff on an individual basis.

Reporting

Part of an HR Department’s task is to handle the reporting of incidents in the workplace in a confidential manner.  It is important that a small business or company designate a certain person or group of people to which reports of sexual harassment, misconduct, workplace-related injuries, etc. are reported.   This is important that this person or people understand the nature and sensitivity of these reports.  It is also vital that there is a mechanism to move forward with reports of this nature.  If these reporting and investigative mechanisms are not in place, it may open an employer up for liability in the future.

When establishing an HR department, it’s important to adhere to local, state, and federal laws to ensure your business is in compliance. If you have any questions pertaining to establishing an HR department, please contact Allison MacKenzie at 775.687.0202.

 

 

During the COVID-19 pandemic, Allison MacKenzie’s primary goal is to protect the health and safety of our clients and our employees. We are currently open to the public by appointment only, and we encourage our employees and clients to continue conducting business virtually or by phone whenever possible. For those that visit or work in our office, we have implemented safety precautions to ensure we are minimizing risk to our clients and team alike. Effective June 26, 2020 all visitors are required to wear a face covering over their nose and mouth when inside our office. Our employees will be wearing face coverings and other forms of PPE while interacting with the public. Our office has adopted measures to comply with social distancing requirements, including allowing no more than one client meeting at any given time (including document drop off), allowing six feet of spacing at all times, and utilizing the mail slot for contactless delivery. Our team is following stringent sanitizing protocols, including common spaces, conference rooms, restrooms and frequently touched surfaces. We ask that if you are sick or have been exposed, that you refrain from visiting our office and we will make all of our remote capabilities available to you. We are proud of our community’s efforts during this time and welcome you to join us in taking precautions to aid in the continued health and safety of our region. We are committed to continuing to serve our clients in the fashion that you have come to expect. Please let us know how we can be of assistance or if you have any questions.

By Daniel S. Judd

Overview: H.R. 6201 Families First Coronavirus Response Act “Families First” or “the Act” became effective March 18, 2020. The Act contains a wide array of governmental changes in response to COVID-19. This memo will focus on what changes are pertinent to businesses.

Emergency Family and Medical Leave Expansion Act

The Act has expanded The Family and Medical Leave Act of 1993 (“FMLA”). FMLA is usually only able to be used if a defined qualified event occurs, such as a birth of a child, or for a family member who is needed to care for him or herself or another family member due to illness. Families First has expanded FMLA to allow employees to take off work up to 12 work weeks within a 12 month period under certain circumstances. If there is a qualifying need relating to a public health emergency in accordance with Section 110 of Division C of Families First, then the Act will apply. A public health emergency is defined as an emergency with respect to COVID-19 declared by a Federal, State, or local authority. A qualifying need under Families First includes an employee who is unable to work or telework due to a need for leave to care for a son or daughter under the age of 18 if the school or place of care has been closed or the child care provider is unavailable due to a public health emergency. This revision applies to most public and private employers with fewer than 500 employees, with some exceptions. In order for an employee to be covered by this provision, the employee must have been employed by the employer for at least 30 calendar days prior to the qualifying need.

In general, the first 10 days for which an employee takes leave under this provision may be unpaid. Although the employee may use accrued vacation time, sick leave, or other paid time off benefits, the employer may not require the employee to do so. After the initial 10-day period of time off, the employer must provide paid leave at a rate of not less than 2/3 of the employee’s regular rate of pay for the number of hours that the employee would normally be scheduled to work. In no event is the employer’s payment to exceed $200 per day and $10,000 in aggregate. If an employee works a varying schedule and the employer is unable to determine the number of hours the employee would normally be working, the employer must use the average number of hours per week that employee was scheduled to work for the previous six months, and if that is not possible, the employer must use the number of hours that the employee is expected to work per week prospectively.

There is an additional requirement that the employer must hold the employee’s position with the employer during the term of the leave. This requirement generally does not apply to an employer that has less than 25 employees and who meets the following conditions:  a) the employee takes leave under this Act; b) the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment and are caused by a public health emergency during the period of leave; c) the employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment; and D) if the reasonable efforts of the employer under paragraph C) fail, the employer makes reasonable efforts during the earlier of one year from the qualifying need relating to the public health emergency concludes, or the date 12 weeks after the date on which the employee’s leave commences to restore the employee to a comparable position.[1]

Emergency Paid Sick Leave Act

Families First also added the Emergency Paid Sick Leave Act. This portion of the Act requires employers to give employees paid sick leave to the extent that the employee is unable to work or telework due to: 1) a Federal, State or local quarantine or isolation order related to COVID-19; 2) advice by a health care provider to self-quarantine due to concerns related to COVID-19; 3) experiencing symptoms of COVID-19 for which the employee seeking a medical diagnosis; 4) the employee is caring for an individual who is subject to an order as described in paragraph 1) or has been advised as described in paragraph 2); 5) the employee is caring for a son or daughter because the school or place of care for the son or daughter has been closed or the child care provider is unavailable due to COVID-19 precautions; or 6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.[2] Sick leave under the Act for items 1-3 above is limited not to exceed $511 per day and $5,110 in the aggregate. The sick leave under the Act for items 4-6 is not to exceed $200 per day and $2,000 in the aggregate. The amount paid to the employee will be based on the employee’s rate of pay or minimum wage, whichever is greater, and subject to the maximums. If the employee is taking sick leave under items 4-6, his or her compensation will be subject to 2/3 his or her rate of pay or minimum wage, whichever is greater, and subject to the maximums.

If the employee is a full-time employee, the employer is required to provide 80 hours of paid sick leave. If the employee is a part-time employee, the employer must provide paid sick time in the amount of the average hours the employee works in a given 2-week period. Paid sick leave under this Act does not carry over from year to year. Employer paid sick leave under this Act terminates immediately with the employee’s next shift immediately following the termination of the need for the sick leave. An employer may not require employees to use other sick time prior to using the sick time provided under the Act. An employer may not require employees taking sick time under the Act to attempt to find coverage for their shifts while taking the sick leave. The sick leave provided under the Act is available immediately to the employee regardless of the length of employment with the employer. Employers are also required to post a notice of these sick time rights in a conspicuous place for the employees to be able to view. The required notice can be found at this link:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Additionally, employers may not discharge, discipline, or otherwise discriminate against an employee who takes leave in accordance with the Act or who has filed any complaint or caused any proceeding to be instituted under the Act. If an employer fails to comply with the Act, the employer will be considered to have failed to pay minimum wages in violation of Section 6 of the Fair Labor Standards Act of 1938, and be subject to penalties contained in Sections 16 and 17 of the Act. If an employer willfully terminates an employee in violation of the Act, the employer will be considered in violation of section 15(a)(3) of the Fair Labor Standards Act of 1938 and be subject to the penalties in Sections 16 and 17.

Tax Credit for Paid Sick and Paid Family and Medical Leave[3]

A benefit conferred to employers in Family First is the ability to receive a tax credit for any paid sick and family and medical leave paid to employees under this Act. An employer is allowed a credit against the tax imposed by Section 3111(a) or 3221(a) of the Internal Revenue Code for each calendar quarter an amount equal to 100% of the qualified sick leave wages paid by the employer with respect to the calendar quarter. The amount of qualified sick leave wages taken into account under subsection (a) with respect to any individual may not exceed the maximum daily sick time allowed to be paid under the Act for any day which the individual is paid qualified sick leave wages. In general, if the amount of credit is in excess of the amount due under 3111(a) or 3221(a), it shall be treated as an over payment and shall be refunded under Sections 6402(a) and 6413(b). Qualified sick leave under this section means wages and compensation paid by an employer which are required to be paid by reason of the Emergency Paid Sick Leave Act.

It is also possible for employers to receive tax credits for some expenses associated with employee health plans. The amount paid by the employer to provide and maintain a group health plan in the amount which is excluded from the gross income of the employees may be a tax credit for the employer. It is important to note that although employers may elect to have these tax credits apply, they may also elect not to have them apply. These credits are also available to self-employed individuals in a substantially similar form. There are a few more rules for the self-employed regarding additional documentation, but the substance is the same. 

Conclusion

The government has enacted Families First to help alleviate some of the pressure both on individuals and businesses during this time of economic hardship. Individuals are going to benefit with expanded paid sick leave if they are affected by COVID-19. In exchange for employers providing employees additional paid time off, they become eligible to receive tax credits which are intended to offset some of the cost.

For further or additional information, contact your human resources professional.

Ryan Russell, partner at Allison MacKenzie Law Firm, was recently announced as one of the Top Attorneys in Northern Nevada by Nevada Business Magazine. This year, the Legal Elite process is in its 12th iteration, and the publication releases its Legal Elite list highlighting the top attorneys in the state.

Polling for the 2019 publication began in mid-February, and nearly 5,000 nominations were submitted by licensed attorneys within the state. Each submission then went through an extensive verification and vetting process resulting in the top attorneys selected their peers.

The Legal Elite list includes only the top 3 percent of attorneys in the state broken down by location. In addition, Legal Elite includes special lists ranking Nevada’s best “Up and Coming” and best government attorneys. The process is rigorous and each nominee must navigate several levels of scrutiny before obtaining final approval to appear on the list. After closing the nomination process, each ballot is individually reviewed for eligibility and every voting attorney is verified with the State Bar of Nevada.

Ryan joined Allison MacKenzie in 2004 and has dedicated his career to serving the communities of Northern Nevada. He has served the community as a Judge Pro Tem for the Carson City Justice and Municipal Court, and serves as Carson City’s representative on the State Bar of Nevada’s Board of Governors. Further, he volunteers his time to the Boys and Girls Club of Western Nevada and served as President of the Board of Directors in 2009. He is also active in the Carson City Rotary Club and coaching youth sports.

Ryan offers his clients a comprehensive background of practice areas. As an attorney and partner with the law firm, he practices in the areas of litigation, administrative law, business law, and family law. He received his Bachelor of Science in Business Administration and Management from the University of Nevada, Reno in 2000. He then pursued a degree in law and graduated from University of Nevada’s William S. Boyd School of Law in 2003. That same year he was admitted to practice law in the State of Nevada.

Congratulations to Ryan and for his accomplishments and being selected as 2019 Legal Elite.

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

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 21^st 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:

https://www.nvbar.org/for-lawyers/law-related-education-3/mocktrial/

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.