Joel W. Locke, a partner at Allison MacKenzie Law Firm, has been elected to the Nevada State Bar Board of Governors. He was elected and sworn in on Thursday, June 27, 2019 at the State Bar of Nevada Annual Meeting which was held in Vail, Colorado. Members of the Board help promote the integrity of the legal profession, encourage professional growth, and provide the opportunity to give back to the community.
The Board of Governors is comprised of 15 members representing the four state districts defined in Supreme Court Rule 81. Elections for the Board are held annually, and governors are selected by the members of their districts to serve two-year terms. Also serving on the Board is the immediate past president and two ex-officio members representing the William S. Boyd School of Law and the Board of Bar Examiners.
The Board of Governors assists in implementing administrative functions of the State Bar, establishing policies and procedures, and affecting rule changes; the Board also takes legislative positions relative to the administration of justice, and oversees the Bar’s fiduciary responsibilities. The State Bar of Nevada has been governing the legal profession, serving its members, and protecting the public interests in Nevada since 1928.
Regarding his election, Joel W. Locke stated: “I am honored to serve as Carson City’s District Representative on the Board of Governors and am humbled by the support of my colleagues in the Carson City legal community. I look forward to giving back to the legal profession and serving with the esteemed members of the Board during my term.”
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, Employment Law, and more. Allison MacKenzie Law Firm is proud of Joel’s election and dedication to serve on the Board of Governors. The firm remains dedicated to civic service and encourages its team of talented attorneys and staff to support various community-minded organizations in the area.
Carson City attorney Ryan Russell was among several Nevadan family law attorneys recently named by the National Academy of Family Law Attorneys on its list of nationally-ranked family law attorneys. The NAFLA recognizes the top family law attorneys in each state with the intent of helping consumers select well-qualified professionals when legal representation is needed.
Candidates must be licensed, in good standing with their local bar association and nominated by either a licensed practicing attorney or one of the in-house staff researchers. In addition, each attorney must have achieved meaningful professional recognition and earned the respect of their clients and peers.
In the final stage of the NAFLA’s four-step selection process, NAFLA’s processing committee selects a portion of the nominated attorneys to advance to the final selection stage, reviews the finalists and selects the official award recipients from each state. The rankings are independent and free from commercial influence.
The legalization of medical marijuana in 2001 and recreational marijuana in 2018 has created significant uncertainty for Nevada employers and employees alike regarding their respective rights and obligations in using marijuana and regulating its use. Specifically, can employees who possess valid medical marijuana cards be terminated for positive drug tests? And what affect, if any, does the legalization of marijuana for recreational use have on an employer’s ability to prohibit its use? One court in Las Vegas has been tasked with answering the former question, while the Nevada Legislature has attempted to bring clarity to the latter.
In order to understand the current legal landscape, employers should be aware of NRS Chapter 453A governing the medical use of marijuana in the State of Nevada. The most significant provision for Nevada employers is NRS 453A.800, which requires employers to attempt to make “reasonable accommodation for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:
(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or
(b) Prohibit the employee from fulfilling any and all of his or her job responsibilities. NRS 453A.800(3) (emphasis added).
NRS 453A.800(2) also states that Nevada medical marijuana laws do not “require any employer to allow the medical use of marijuana in the workplace.” However, NRS 453A.800 has created significant ambiguity for employers and employees because it does not authorize any administrative agency to enforce it, create a private cause of action for employees to enforce it, or identify the liability of an employer who violates it. Moreover, the statute does not explain what steps an employer must take to reasonably accommodate an employee’s medical marijuana use. Fortunately, the currently-pending Nellis v. Sunrise Hospital case may provide much needed clarity on this very murky area of the law.
On September 22, 2017, Scott Nellis, a registered nurse, filed suit against his former employer, Sunrise Hospital, alleging claims of wrongful discharge and violations of NRS Chapter 453A based on his termination following a positive drug test. Years prior to his termination, Nellis was attacked by a patient at Sunrise Hospital and suffered from a fractured vertebra. As a result, Nellis applied for and obtained a medical marijuana card. In February of 2017, Nellis was again attacked and injured by a patient while on duty. In the emergency room, Nellis provided a urine sample, which tested positive for the presence of marijuana. Sunrise Hospital then terminated Nellis on the basis that it suspected he was working while impaired in violation of hospital policy.
While the case is likely far from resolution, it is significant that Nellis’ claims have survived the motion to dismiss filed by Sunrise Hospital. The case is currently set for trial on January 6, 2020 in Department 8 of the Eighth Judicial District Court in Las Vegas, Nevada. Employers should closely monitor this case, as its final decision will likely have significant ramifications for employer obligations and policies related to medical marijuana use.
The Nellis case also begs the question of whether employers can avoid issues with Chapter 453A by refusing to hire anyone who tests positive for marijuana in a pre-employment drug test, since Chapter 453A only applies to employees. This issue is further complicated by the fact that the recreational use of marijuana has been legalized, and a person may test positive for marijuana days or even weeks after consumption. During the most recent legislative session, the Nevada Legislature clarified the issue of marijuana and pre-employment screening. Assembly Bill 132, approved by Governor Sisolak on June 5, 2019, prohibits employers from “fail[ing] or refus[ing] to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” AB 132 does contain exceptions for prospective employees applying for positions as firefighters or emergency medical technicians and positions that are safety-sensitive or require an employee to operate a motor vehicle. In addition, the provisions of AB 132 do not apply “to the extent that they are inconsistent with the provisions of an employment contract or collective bargaining agreement” or federal law or “to a position of employment funded by a federal grant.”
Notably, AB 132 does not distinguish between medical and recreational marijuana users, meaning an individual does not need to hold a valid medical marijuana card to be protected by the new law. It is also important to note that AB 132 only applies to pre-employment screening. Employers may still prohibit employees from engaging in recreational marijuana use and may terminate an employee should they test positive for the presence of marijuana. While AB 132 does not become affective until January 1, 2020, employers should consult with qualified legal counsel to ensure the adoption of policies and practices that conform to the new law.
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.
Make Sure it Complies with the Fair Labor Standards Act
Many employers understand the
value of giving back to their communities and realize the benefit of visibility
within their communities. Thus, an
increasing number of employers are following the new trend of implementing
optional community service programs within their companies. In an
employer-sponsored volunteer program, the employer allows employees to volunteer
for a certain number of working hours each year or each month while providing
the workers with the compensation they would have received for being on the job. In some instances, employees may volunteer
during non-working hours and still receive some type of monetary award. These
can include bonuses or non-monetary awards such as a party or other fun outing
In an employer-sponsored
volunteer program of this nature, the employer may either sponsor a volunteer
outing or outings in which employees can participate. Alternatively, businesses may allow employees
to participate in a volunteer activity they have chosen for themselves. Such a
program can have a significant benefits for both employees and employers, including
improved morale at the work place, increased involvement and contributions in
the community, and visibility within the community. However, it is wise to be
cautious in the implementation of a volunteer program within any business or
A March 14, 2019 Opinion issued
by the Wage and Hour Division of the United States Department of Labor
addresses such programs and how they have the potential to violate the Fair
Labor Standards Act (FLSA). The Opinion provides that “Congress did not intend
for the FLSA ‘to discourage or impede volunteer activities,’ but rather to
‘prevent manipulation or abuse of minimum wage or overtime requirements through
coercion or undue pressure upon individuals to ‘volunteer’ their
As such, under the law, an
employer intending to implement a volunteer program is permitted to notify its
employees of such volunteer opportunities and activities as well as ask for
assistance from employees in participating in such volunteering tasks. An employer is also permitted to implement an
incentive-based program so long as an employee’s participation in such a program
not mandatory. An
employer-sponsored volunteer program cannot adversely affect working conditions
or employment prospects for employees whether they do or do not choose to
participate. In other words, an employer
cannot engage in direct or implied retaliatory actions against an employee who
chooses not to participate. Further, the
employer cannot put undue pressure on the employees to participate in the
Moreover, the Opinion stated that
an employer cannot “control or direct” the volunteer work of its employees. Specifically,
an employer is not permitted to allow or disallow certain types of volunteer
work and/or direct the employee on how to accomplish such volunteer work. If the employer does “direct or control” the
way in which an employee completes a volunteering task and/or volunteering
activity, that time will be considered hours worked under the FLSA. In turn, those hours are subject to the regulation
of overtime and other standards under the FLSA. The Opinion also stated that
employers may use certain methods of tracking the volunteer hours of its
employees so long as the tracking device does not control or instruct the
employee in their volunteerism.
The Opinion also states that
compensating employees when they participate in volunteer activities during
normal working hours does not “jeopardize their status as volunteers when they
participate in volunteer activities outside of normal work hours.”
An employer may use an employee’s
time volunteering as a factor in calculating whether to provide that employee
with a bonus, “without incurring an obligation to treat that time as hours worked
so long as: (1) volunteering is optional; (2) not volunteering will have no
adverse effect on the employee’s working conditions or employment prospects;
and (3) the employee is not guaranteed a bonus for volunteering.” In essence, a bonus cannot be guaranteed to
an employee who volunteers and/or taken away from an employee who does not
Therefore, if an employer chooses
to engage its employees by implementing a volunteer program, the employer must
ensure that it is complying with the FLSA.
In order to do so, employers must ensure the following items are adhered
to 1) employee volunteering is completely optional; 2) there are no adverse
impacts or effects on employees who choose not to volunteer; 3) if an employer
chooses to provide bonuses to employee-volunteers, that the bonus is not
guaranteed in exchange for the employee’s volunteer hours; and 4) the employer
does not direct or control the employee volunteer activities.
programs are valuable tools that provide many benefits for companies, employees
and communities alike. If you, as an employer, are considering implementing such
programming, it is important to confer with legal counsel regarding the
specifics of such a program to ensure compliance with the FLSA.
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
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
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.
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
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.
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.
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
Regional February 9, 2019Regional Justice Center, Las Vegas
Regional February 22, 2019Federal Courthouse, Reno
State Competition March 15-16, 2019Federal Courthouse, Reno
To learn more about the High School Mock Trial Program
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.
Justin 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.
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.
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.
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.”
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.
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
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.