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.

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.

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.

James Cavilia of Allison MacKenzie Law Firm was recently announced as one of the Top Attorneys in Northern Nevada by Nevada Business Magazine. Each year, the publication releases its Legal Elite list highlighting the top attorneys in the state. After an intense nomination, verification, and voting process, Jim was named as part of the 2018 Legal Elite.

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 approval to appear on the list. After closing the nomination process, each ballot was individually reviewed for eligibility and every voting attorney was verified with the State Bar of Nevada. The Legal Elite process is now in its 11th iteration.

Jim is a partner at Allison MacKenzie and has dedicated his career to serving the communities of Northern Nevada. Jim joined the team of Allison MacKenzie in 1992. A native Nevadan, Jim Cavilia graduated from the University of Nevada, Reno, and then obtained a law degree from Santa Clara University School of Law in 1990. Jim was admitted to practice in Nevada in 1990, and in California in 1991. His areas of practice include real estate development law, land use, real estate transactions, administrative law, business law, and water rights law.

Further, Jim is involved with a number of professional organizations including the Washoe County Bar Association, First Judicial District Bar Association and the State Bar of Nevada. His dedication to the local community is evidenced by his participation with the Catholic Diocese of Reno School Board, St. Teresa of Avila Catholic School Finance Board, Northern Nevada Development Authority Board of Directors, the Boys’ and Girls’ Club of Western Nevada Board of Directors from 1994 through 2003, Catholic Community Services of Northern Nevada Board of Trustees, and Bishop Manogue High School Board of Regents.

Congratulations to Jim and all of the distinguished attorneys featured among the 2018 Legal Elite.

 

Jennifer McMenomy Joins Allison MacKenzie Law Firm as New Associate Attorney

Allison MacKenzie Law Firm is pleased to announce the hiring of Jennifer McMenomy as an associate attorney, effective May 7, 2018. A Carson City native and former Policy Analyst for the Nevada State Legislature – State Assembly, Jennifer joins the law firm and will focus her practice on Administrative Law, Government Affairs, Family Law, Estate Planning, Guardianship, and Probate Law.

After graduating from Galena High School, Jennifer received her undergraduate degree in 2010 from the University of Nevada, Reno. Pursuing a law degree, she attended Western State University College of Law in Fullerton, California where she graduated in 2014.

After graduation, Jennifer obtained her law licensing in both California (2015) and Nevada (2016). She was also employed as a Government and Regulatory Affairs Analyst for a solar energy company and worked as an attorney in the San Francisco Bay Area before returning to Northern Nevada.

Commenting on her new association, Jennifer had this to say, “Allison MacKenzie Law Firm is a prestigious and respected organization led by some of the most professional and well-versed attorneys in the country. I was taken in by the firm’s commitment to family and the community. I am delighted to return to the area and join such an outstanding firm.”

Jennifer was drawn to the legal profession as a youngster when she read To Kill a Mockingbird. She began to explore advocacy through the courts and helping others as a career choice. Jennifer is an advocate of civil rights and fair trial proceedings.

Jennifer resides in Reno with her husband and is expecting her first child. She spends her free time running with her four-legged partner named Scout, a German Shepherd, and enjoys time with family, baking, and reading. Committed to empowering youth, for the past 2 years, Jennifer has been a judge for the annual “We the People” competition, an organization promoting civic competence and responsibility among upper elementary and secondary students.

The talented legal team of Allison MacKenzie is pleased to welcome Jennifer to the organization. The firm is confident she will provide exceptional service to the firm’s clients.

For more information about Allison MacKenzie Law Firm, visit www.allisonmackenzie.com or call 775.687.0202.

See the article at CarsonNow.org

Ryan Russell is a Carson City native and fourth generation Nevadan. After graduating from Carson High School, he earned a Bachelor of Science degree in Business Administration from the University of Nevada, Reno. He went on to obtain a law degree from the William S. Boyd School of Law at the University of Nevada, Las Vegas.

He was admitted to practice law in Nevada in 2003 and joined Allison MacKenzie Law Firm in 2004. Ryan’s areas of practice have focused on litigation, administrative law, and business law.
Currently, he serves as a Judge Pro Tem (substitute judge) 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.

Ryan’s impressive legal advocacy has been recognized by Legal Elite – Nevada Business Magazine in 2012, 2013 and 2017. Further, in 2013, Volunteer Attorneys for Rural Nevadans honored him with the award for Outstanding Service for the Lawyer in the Lobby Project. He is AV® Preeminent™ Peer Review Rated by the Martindale Hubbell Law Directory and his Avvo rating is 10, the highest possible.

Ryan has felt the calling to be a judge since he was an extern with Judges Griffin and Maddox after his first year of law school. This goal has only strengthened over time, especially through his experiences as a Judge Pro Tem on the bench in the position he seeks to fill. Ryan stated, “I have learned that the role of the judge is a humble and critical one which can only be filled properly with an eye toward the rule of law and the fundamental principle of justice.”

By serving on the bench, Ryan hopes to be part of furthering the safety and vitality of the community by ensuring the court is run expeditiously, fairly, and evenly, with each individual in the courtroom afforded the respect and decorum of the court itself.

In relation to Justice of the Peace position, Ryan believes that the biggest issue facing the community is that of addiction. “Addiction is at the core of many crimes, and certainly at the core of repeat offense, and even is an issue in many civil matters. Our court, through a comprehensive team approach in both misdemeanor addiction court and mental health court, is taking huge strides to address the fundamental issue of addiction. The successes of such programs are reducing recidivism; and thus, improving our community,” Ryan said.

Additionally, Ryan volunteers for the Boys and Girls Club of Western Nevada where he served as President of the Board of Directors, in 2009, and is an active member of the Carson City Rotary Club.

Russell resides in Carson City with Sarah, his wife, and their three children.

Allison MacKenzie partner Ryan Russell will be one of this year’s celebrity waiters at the 2018 Have a Heart Celebrity Waiter Fundraiser Dinner. The event is scheduled for Saturday, May 19th at Glen Eagle’s Restaurant and Lounge located at: 3700 N Carson St. in Carson City, Nevada.

The Have a Heart Celebrity Waiter Fundraiser Dinner is just one of the many outstanding events organized by local charity, Friends In Service Helping (FISH). FISH provides food, clothing, shelter and medical aid to the homeless and hungry within our community, with the objective to provide programs and referrals to families and individuals so that they may become self-sufficient.

Ryan will be working along with other local notables, including KOLO 8 Meteorologist Jeff Thompson, and competing for tips to help raise money to provide services for the local homeless and hungry population.

“I am honored to be able to help FISH by being a waiter at the Have a Heart Celebration. The mission of FISH is honorable and a direct benefit to the community I love and hope to serve into the future,” said Ryan Russell about his upcoming volunteer opportunity.

In addition to volunteering for this event, Ryan is active with Carson City Rotary Club and the Boys and Girls Club of Western Nevada where he served as President of the Board of Directors in 2009.

Event seating is limited and available at 5:00 pm and 7:30 pm. Dinner tickets are $65 per person or $500 for a table of 8. A no host cash bar is available. Tickets can be purchased at: NVFish.com. For more information, contact FISH: 775.882.FISH or info@NVFish.com.

Local Attorney Serves on Council to Give Back to the Legal Profession and the Community

Allison MacKenzie Law Firm is pleased to announce Joel W. Locke, a partner at Allison MacKenzie Law Firm in Carson City, Nevada, has been elected as a member of Nevada State Bar Family Law Executive Council. He was nominated and elected into the position at the Annual Family Law Conference held in Bishop, CA on March 1 and 2, 2018. Members of the council help promote the integrity of the legal profession, encourage professional growth and provide the opportunity to give back to the community.

Allison MacKenzie attorneys Joel W. Locke and Kyle A. Winter, were both in attendance at the annual Family Law Conference. The event sponsors numerous sessions aimed at furthering knowledge in matters affecting Family Law. Topics span a variety of issues such as: family law practice updates, law practice management, transgender and child custody issues, tax issues impacting divorce, and domestic violence.

“I find the Family Law Conference enlightening. Presentations have real world practicality and provide strategies and ideas of how to become a more effective attorney and litigator. It also encourages communication between judges and other attorneys outside of the courtroom setting,” Kyle Winter stated.

On his nomination and election to Family Law Executive Council, Joel Locke had this to say, “I am honored to serve on the council and look forward to having the opportunity to give back to both my profession and the community I serve.”

Joel W. Locke joined Allison MacKenzie in 2007. A native Nevadan, Joel Locke graduated from the University of Nevada, Reno in 2000, and then obtained his law degree from Gonzaga University School of Law in 2006. Subsequently, he was admitted to practice law in the State of Nevada in 2006. Joel’s areas of legal practice include: Family Law, Probate Law, Guardianships, Healthcare Law and more.

Allison MacKenzie Law Firm is proud of Joel’s nomination and election to serve on this worthwhile council. The firm remains dedicated to civic service and encourages its team of talented attorneys and staff to support area non-profits and community minded organizations.

Read more at: CarsonNow.org

 

Allison MacKenzie Law Firm accepts Volunteer Attorneys for Rural Nevadans (VARN) community service award. The firm has received recognition for providing free, exceptional legal services to low-income rural Nevadans. The VARN Pro Bono Service Awards reception was held at the Supreme Court Rotunda on Thursday, January 25, 2018.

Allison MacKenzie Law Firm associates, Kyle A. Winter, S. Jordan Walsh and Kevin Benson, were honored for their efforts assisting VARN clients in family, real estate and civil matters with the coveted “2017 Law Firm with the Most Pro Bono Participants” award during the course of the 2017 VARN Pro Bono Project. While VARN does not provide assistance in criminal matters, it does provide civil legal services pro bono (for free) for eligible low-income individuals and families through the Pro Bono Project.

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In an article entitled “The Importance of an Estate Plan” drafted earlier this year, we discussed the benefits of future planning as it relates to persons of all income brackets. A general background was presented providing the readers an opportunity to understand the importance of an estate plan, and more specifically the advantages of a Trust, powers of attorney, and/or living wills to ensure that a person’s current desires would be followed through at a time when they could not make decisions for themselves, or upon their death. As a follow up to The Importance of an Estate Plan, this article will discuss a rarely used, but important subset of estate planning for clients who want to provide for their beloved pets in addition to their family members.

Unsurprisingly, most people consider their pets as an important part of their family. The purpose of an estate plan is to ensure that one’s property is cared for and distributed as the Grantor desires. Likewise, the purpose of creating enforceable documents regarding one’s pets is to ensure that they are properly cared for and placed in a loving home for the remainder of their lifetimes.

With this idea in mind, a Grantor can ensure their pets are provided for when they are unable to care for their pets themselves. Such provisions in an estate plan can be as simple or elaborate as one desires. A client may merely designate who will take custody of the family pets, or may choose to provide a comprehensive plan for who will care for the pets, including providing funds for their care, and donating any residual funds to various shelters in their pet’s name upon their passing. Certainly, a Grantor can leave their estate to whomever they decide, including their pets, and such provisions will be followed just as any other distribution or request contained in an individual’s Trust or estate plan.

Whether you already have an established trust that does not provide for your animals, or if you are planning on establishing a family trust and wish to include provisions for your animals, it is important that you discuss these and other estate planning issues with competent legal counsel. Be sure to that your wishes are known in advance whatever they may be. At Allison MacKenzie, Ltd., our attorneys are available to discuss these estate planning issues with you whether you already have an established trust that does not provide for your animals, or if you are planning on establishing a family trust and wish to include provisions for your animals.