Employment law

By now, most of the legislative acts passed during the 2007 legislative session have become effective and are impacting employers across the state. Below is a brief summary of these changes and the steps employers should take to ensure compliance.

1. Jury-duty leave (S.B. 208)

Employers know that it is illegal to terminate or threaten to terminate employees for fulfilling their jury duty. This offense amounts to a gross misdemeanor. Nevada law also authorizes the affected employee to sue the offending employer for reinstatement of employment and for damages, including punitive damages for up to $50,000.

The Nevada Legislature has now further defined the scope of jury duty leave. Employees who are summoned for jury duty are required to provide their employer with at least three days notice before the employee is to appear for jury duty. Employers cannot require their employees to use sick leave or vacation time for jury duty. Moreover, employers cannot require the employee who is summoned for jury duty to work: (1) within eight hours before the time which the employee is to appear for jury duty; or (2) if the employee's jury duty service has lasted for at least four hours, including the time for going to and from the court, between 5 p.m. on the day of their appearance for jury duty and 3 a.m. the following day. Employers who have a 24-hour operation need to be mindful of these requirements relating to when employees who have been summoned for jury duty may be required to work before and after their service.

We would recommend that you review your current policy on jury duty leave to ensure compliance with these new requirements.

2. Disability discrimination (A.B. 443)

The definition of "disability" in Chapter 613 of the Nevada Revised Statutes, which addresses prohibited employment practices, has been expanded to specifically include an individual with HIV. It is illegal under Nevada law for employers (with at least 15 employees) to discriminate against an employee who is HIV positive, has a "record of" having HIV or who is "being regarded as having" HIV.

3. Employment of unauthorized aliens (A.B. 383)

In an effort to address the employment of unauthorized aliens, the Nevada Legislature made two changes to existing law to streamline the enforcement process. First, the Department of Business and Industry is required to provide on its website a link to the Social Security Administration where employers may verify the Social Security numbers of employees. Second, the Nevada Tax Commission may fine any business who holds a state business license for employing unauthorized aliens. However, the commission is mandated to impose an administrative fine if the commission finds that the employer violated federal law "willfully, flagrantly or otherwise egregiously." The commission must consider any proof which shows that the employer attempted to verify the Social Security number of the unauthorized alien within six months of the date of alleged employment, including a printout from the link maintained on the Department of Business and Industry's website. The commission is also required to hold a hearing to determine whether to take action against any employer who has been found by the U.S. Attorney General to employ unauthorized aliens pursuant to federal law.

4. Employment records (S.B. 38 & A.B. 51)

There are two new pieces of legislation relating to the dissemination of employment records. Under existing laws, employers may obtain records of criminal convictions of an employee or applicant from any criminal justice agency. The right to obtain this information has been expanded, effective March 1, 2008, to include "a person or entity designated to receive the information on behalf of" the employer. Thus, agencies that conduct background checks may now obtain this information directly from the criminal justice agency.

The second change relates to the employment references that must be provided to firefighting agencies. Currently, law enforcement agencies may request employment records relating to a current or former employee who is applying for a position with a law enforcement agency, as long as the request is accompanied by a signed and notarized authorization from the applicant consenting to the release of information. This right to compel employment records is now expanded to cover firefighting agencies in connection with applicants applying for the position of firefighter. Employers can expect to see requests for employment records from firefighting agencies beginning Oct. 1, 2007.

6. New federal regulations addressing immigration

In the absence of Congressional action with respect to immigration reform, the Department of Homeland Security has issued new regulations which make it more difficult for employers to claim that they are not knowingly hiring or employing illegal aliens. These regulations have been highly controversial and recent litigation in which a federal judge has enjoined the regulations from being enforced has caused uncertainty amongst employers. Regardless of whether these regulations are ultimately enforced, the regulations provide practical guidance which employers may want to adopt to ensure that they are complying with their responsibilities.

For the last several years, the Social Security Administration has sent "no-match" letters to employers when the employers' reported wages and the employee's name and social security number failed to match the Social Security Administration's records. Upon receiving such a letter in the past, an employer had no duty to respond. Under the regulations, the employer's responsibilities have changed drastically.

Under the new regulations, upon receiving a no-match letter, an employer must review its own records to ensure that the discrepancy was not caused by a clerical error. If not, the employer must notify the employee and allow the employee the chance to explain the discrepancy. If the discrepancy is not resolved, the burden is on the employee to resolve the discrepancy with the Social Security Administration. If the discrepancy cannot be resolved within 90 days after receipt of the no-match letter, the employee is then given an opportunity to present additional identification to satisfy the Form I-9 requirements. At this stage, the employee cannot use any document containing the improper Social Security number. If the employee cannot satisfy the Form I-9 requirements, the employer is required to terminate the employee or face liability for having "knowingly" employed an unauthorized employee.

While these regulations are not currently being enforced until the underlying litigation is resolved, employers should be aware of the requirements imposed by these regulations and should be cognizant of the Department of Homeland Security's appetite to strengthen worksite enforcement of the immigration laws.

Miranda Du is a partner and chair of the employment law group at the law firm McDonald Carano Wilson. Ryan Bellows is an associate in the firm's Reno office and works primarily in the areas of commercial, corporate and general civil litigation.