The Top Six Mistakes Nevada Businesses Can Make Under Nevada’s New Laws

By David L. Edelblute

Nevada’s 81^st Session started on February 1 and recently adjourned sine die at the stroke of midnight on June 1. While most business owners were focused on pulling their businesses out of the depths of government shutdowns and COVID-19 regulations¹, Nevada’s Legislature passed over 500 bills, 300 of which have already been signed into law. Here are six mistakes small business owners could be making under the recently passed laws.

Mistake #1: Having Your Hourly Employees Enter Into Non-Compete Agreements

Assembly Bill 47 contains language buried deep within the bill providing that non-competition covenants may not apply to employees who are paid solely on an hourly wage basis, exclusive of tips or gratuities. AB 47 also prohibits an employer from bringing an action to enforce a non-compete agreement if the former employee did not solicit a former customer, the customer voluntarily chose to leave and seek services from the former employee, and if the former employee complies with valid geographical and scope restraints in the non-competition agreement. If an employer brings an action to enforce these now-invalid agreements, or if a former employee brings an action challenging an unenforceable non-competition covenant, courts are now required to award the prevailing former employee reasonable attorneys’ fees and costs.

All business owners should consider reviewing their employment agreements to ensure compliance with this new law, effective October 1, 2021.

Mistake #2: Failing to Provide Contracts in Languages Other Than English

Assembly Bill 359 amends Nevada’s Deceptive Trade Practices Act to include new requirements for businesses that advertise and negotiate in a language other than English. If you advertise and negotiate in any language other than English, you will soon be required to deliver a full translation of any contract or agreement that results from your advertising and negotiations in the language you used to anyone who is a party to that agreement or who may sign the agreement. While there are limited exceptions to this bill, such as certain transactions for financial institutions, the general rule applies to most transactions, including most lease and rental agreements. Failure to provide contracts or agreements in the advertised and negotiating language will constitute a deceptive trade practice.

As of the date of this publication, Governor Sisolak has not signed AB 359, but it is anticipated that he will soon sign this bill given that it passed both houses unanimously, making it effective at some date later this year.

Mistake #3: Asking for a Job Applicant’s Wage History

Senate Bill 293 imposes several new wage history conditions on employers during the hiring process. Employers are no longer permitted to seek the wage or salary history of a prospective employee, cannot rely on wage or salary history of an applicant to determine whether to offer employment or to determine the rate of pay for the applicant, and cannot refuse to interview, hire, promote, or employ an applicant, or discriminate or retaliate against an applicant, who chooses not to disclose wage or salary history. SB 293 also requires employers to provide applicants who have completed an interview the wage or salary range for a position or promotion.

SB 293 does not prevent an employer from asking a prospective employee about their pay expectations, nor does it prevent an applicant from making a willing disclosure. However, employers should be careful not to use voluntarily disclosed wage history to determine whether or not to hire a candidate. This law is effective starting October 1, 2021, and carries a $5,000 fine for each violation, plus administrative costs of any proceeding, including attorneys’ fees and costs.

Mistake #4: Denying Employees Sick Leave to Care for Family Members

Assembly Bill 190 provides that employers who provide paid or unpaid sick leave to their employees must allow their employees to use accrued sick leave to assist members of the employee's immediate family who are sick, injured, or need medical care under the same conditions that would apply to the employee taking leave for their personal use. Leave used for these purposes may be limited by employers to an amount equal to no less than the amount of leave accrued in a six-month period. This law does not apply to employees covered under a valid collective bargaining agreement. Violations of this new requirement are subject to an administrative penalty of up to $5,000 per violation and any person violating this law is guilty of a misdemeanor. This law is effective October 1, 2021.

Mistake #5: Maintaining Gender-Specific Single-Stall Restrooms

Under yet-to-be-signed Assembly Bill 280, all single-stall restrooms in places of public accommodation² will be prohibited from using “gendered signage,” but may use inclusive language such as “All-gender bathroom” or “All-accessible bathroom.” Owners or operators of places of public accommodation will also be required to make single-stall  restrooms inclusive by permitting parents or guardians to enter with their children and a caregiver to assist a person with a disability. Each county, city, and other government entities that adopt building codes will be mandated to include a new code requirement applying the same rules to any single-stall restroom constructed on or after October 1, 2021.

As of the date of this publication, Governor Sisolak has not signed AB 280. I anticipate he will sign this bill in the coming weeks, making it effective at a later date.

Mistake #6: Denying Employees the Right to Return to Work

Senate Bill 386, the Nevada Hospitality and Travel Workers Right to Return Act (“Right to Return”), gives workers who were laid off after March 12, 2020, for reasons related to the COVID-19 pandemic, an opportunity to return to their job from July 1, 2021 through August 21, 2022. Under SB 386, which is expected to be signed by Governor Sisolak soon, many workers in the hospitality, airport, casino, travel, and sports stadium industries will have the chance to return to work.

Employers with more than 30 employees in these industries must offer laid-off employees job openings for the same or similar job. Employees will have 24 hours to accept the job offer and must be available to return to work within five days. Workers may turn down jobs three times—spaced out by three-week intervals—before they are no longer eligible for the Right to Return protections. Employers that cannot reach an employee are not obligated to offer a job. Employers that do not recall a laid-off employee must provide a written explanation of any decision not to recall employees.

Employers in these sectors should consider contacting legal counsel to review the new regulations and ensure compliance with these hiring and notice provisions. Employers who violate the Right to Return law, once passed and in effect, may face substantial liabilities for failing to abide by this new law.