By Bonnie Drinkwater, Esq. and Tracy McKenzie, Esq.
Under both federal and state employment laws, employers are required to post specific employment materials for employees in a conspicuous area (such as a break or lunch room) and in a language employees understand. When there are changes to existing employment laws or new laws are enacted, the mandatory posting requirements also change. Accordingly, employers must be aware of and comply with changes in the mandatory posting requirements.
There have been several recent amendments to both state and federal employment laws and mandatory posting requirements. Effective November 21, 2009, employers with fifteen or more employees must post the updated “Equal Employment Opportunity is the Law” poster which includes information regarding the new Genetic Information Nondiscrimination Act (“GINA”) prohibiting discrimination against applicants and employees on the basis of genetic information. In addition, following are several recent changes to state employment posting requirements: 1) Effective October 20, 2009, the Nevada Unemployment Insurance poster must include a new website address for filing an unemployment claim online; 2) The Nevada Minimum Wage poster was recently updated to reflect an amendment to exemptions that apply to retail or service workers and to reflect the recent increase in the state minimum wage.
We recommend that employers obtain the mandated employment posters from a provider that notifies employers of posting requirement changes and provides updated posters (e.g. www.postercompliance.com).
Saturday, November 21, 2009
WHAT IS PARENTAL LEAVE AND DO I HAVE TO OFFER IT TO MY EMPLOYEES?
By Bonnie Drinkwater, Esq. and Tracy McKenzie, Esq.
Effective August 15, 2009 in the State of Nevada, if you are an employer with fifty (50) or more employees (for each working day in each of twenty (20) or more calendar weeks in the current calendar year), you must comply with the new parental leave for school activities law. This law requires you to provide an employee who is a parent, guardian, or custodian of a child enrolled in a public or private school four (4) hours of unpaid leave per school year per child to:
You should prepare and distribute a new (or updated) policy which sets forth who is eligible for the leave, the amount of leave, the activities for which leave will be granted, and the procedure an employee must follow to request the leave. The policy should also contain a provision indicating that the company will not terminate, demote, suspend or otherwise discriminate against an employee, or threaten to take such action against an employee, who utilizes the leave benefits provided by the new law.
Do I need to do training?
The employer should also train their supervisors and managers regarding the provisions of the new law to avoid discrimination against employees who take parental leave. There are provisions in the law itself that make it an unlawful employment practice for an employer to terminate, demote, suspend, discriminate against, or to otherwise threaten to assert such action against an employee who: (1) takes the parental leave granted by the statute; (2) attends a conference requested by an administrator of the child’s school; or (3) is notified during work hours by a school employee of an emergency regarding the employee’s child.
What happens if I don’t comply?
The provisions of the new statute provide specific remedies for a violation. If you terminate, demote, suspend, discriminate against, or threaten to take such action against an employee in violation of the new law, you may be guilty of a misdemeanor. There is a procedure for an aggrieved employee to file a complaint with the Labor Commissioner. You then have an affirmative duty to provide the employee “who is discharged from employment or who is demoted, suspended or otherwise discriminated against with all the forms necessary” to file a complaint with the Labor Commissioner. If the Labor Commissioner finds in favor of the employee, the Labor Commissioner may award, in addition to any remedies provided in NRS Chapters 607 and 608, the following: (1) lost wages and benefits as a result of the violation; (2) an order reinstating the employee to their position without loss of seniority, pay or benefits; and (3) damages in the amount of the lost wages and benefits.
Effective August 15, 2009 in the State of Nevada, if you are an employer with fifty (50) or more employees (for each working day in each of twenty (20) or more calendar weeks in the current calendar year), you must comply with the new parental leave for school activities law. This law requires you to provide an employee who is a parent, guardian, or custodian of a child enrolled in a public or private school four (4) hours of unpaid leave per school year per child to:
• Attend parent-teacher conferences;You may place the following restrictions on an employee’s use of the parental leave:
• Attend school-related activities during regular school hours;
• Volunteer or otherwise be involved at the school in which the child is enrolled during regular school hours; and
• Attend school-sponsored events.
• The leave must be taken in increments of at least one (1) hour;What changes should I make to my employee handbook?
• The leave must be taken at a time mutually agreeable to both the employer and the employee;
• The employer may require the employee to request the leave in writing at least five (5) school days in advance of the leave; and
• The employer may require an employee to provide documentation indicating that the employee attended or participated in the school-related function for which the leave was granted.
You should prepare and distribute a new (or updated) policy which sets forth who is eligible for the leave, the amount of leave, the activities for which leave will be granted, and the procedure an employee must follow to request the leave. The policy should also contain a provision indicating that the company will not terminate, demote, suspend or otherwise discriminate against an employee, or threaten to take such action against an employee, who utilizes the leave benefits provided by the new law.
Do I need to do training?
The employer should also train their supervisors and managers regarding the provisions of the new law to avoid discrimination against employees who take parental leave. There are provisions in the law itself that make it an unlawful employment practice for an employer to terminate, demote, suspend, discriminate against, or to otherwise threaten to assert such action against an employee who: (1) takes the parental leave granted by the statute; (2) attends a conference requested by an administrator of the child’s school; or (3) is notified during work hours by a school employee of an emergency regarding the employee’s child.
What happens if I don’t comply?
The provisions of the new statute provide specific remedies for a violation. If you terminate, demote, suspend, discriminate against, or threaten to take such action against an employee in violation of the new law, you may be guilty of a misdemeanor. There is a procedure for an aggrieved employee to file a complaint with the Labor Commissioner. You then have an affirmative duty to provide the employee “who is discharged from employment or who is demoted, suspended or otherwise discriminated against with all the forms necessary” to file a complaint with the Labor Commissioner. If the Labor Commissioner finds in favor of the employee, the Labor Commissioner may award, in addition to any remedies provided in NRS Chapters 607 and 608, the following: (1) lost wages and benefits as a result of the violation; (2) an order reinstating the employee to their position without loss of seniority, pay or benefits; and (3) damages in the amount of the lost wages and benefits.
NEW PROCEDURES FOR NEVADA BUSINESS REGISTRATION
If you are in business or thinking about starting a business in Nevada, there has been a change in the way that your business should obtain its Nevada Business Registration (the “License”). With a few minor exceptions, this License is required of every person or entity doing business in Nevada. This means anyone who performs services or engages in a trade for profit or if you have a legal entity with the State.
Effective October 1, 2009, State Licenses began to be issued out of the Nevada Secretary of State Office rather than the Department of Taxation where you previously filed for the License. As part of this change, the Secretary of State’s office will require that all businesses file for their annual State License in conjunction with the filing of the Annual List.
What if you should have a License, but never got one?
If your initial list is due soon (before the end of the year), you can simply apply for the License when you file your initial list with the Secretary of State. However, if your list is not due soon (say before the end of the year), you should submit a Gap Business License Application as soon as possible to avoid late penalties for failure to obtain a License. Thereafter, your License will be due when your annual list is due.
What if you have a License but it expires before your annual list is due?
You should submit a Gap Business License Application as soon as possible (preferably before the expiration date) to avoid late penalties for failure to obtain a License. Thereafter, your License will be renewed when you file your annual list.
What if you have a License, but it expires after your list is due?
Simply file your list when it is due and submit for your License renewal at the same time (even though it has not expired). You will pay a prorated fee for the balance of the year and, next year, your License will expire at the same time that your annual list is due.
To find more information and the appropriate forms, visit the Nevada Secretary of State’s website at www.sos.state.nv.us.
Effective October 1, 2009, State Licenses began to be issued out of the Nevada Secretary of State Office rather than the Department of Taxation where you previously filed for the License. As part of this change, the Secretary of State’s office will require that all businesses file for their annual State License in conjunction with the filing of the Annual List.
What if you should have a License, but never got one?
If your initial list is due soon (before the end of the year), you can simply apply for the License when you file your initial list with the Secretary of State. However, if your list is not due soon (say before the end of the year), you should submit a Gap Business License Application as soon as possible to avoid late penalties for failure to obtain a License. Thereafter, your License will be due when your annual list is due.
What if you have a License but it expires before your annual list is due?
You should submit a Gap Business License Application as soon as possible (preferably before the expiration date) to avoid late penalties for failure to obtain a License. Thereafter, your License will be renewed when you file your annual list.
What if you have a License, but it expires after your list is due?
Simply file your list when it is due and submit for your License renewal at the same time (even though it has not expired). You will pay a prorated fee for the balance of the year and, next year, your License will expire at the same time that your annual list is due.
To find more information and the appropriate forms, visit the Nevada Secretary of State’s website at www.sos.state.nv.us.
WHAT IS THE NEVADA DOMESTIC PARTNERSHIP ACT AND WHAT DO I NEED TO DO AS A BUSINESS OWNER?
By Bonnie Drinkwater, Esq. and Tracy McKenzie, Esq.
Effective October 1, 2009 (It’s coming up fast!), the State of Nevada will recognize a new civil contract between unmarried individuals who meet the requirements of the Nevada Domestic Partnership Act and who properly file registration documents with the Nevada Secretary of State. Domestic partners may be the same sex or opposite sex. The new law grants registered domestic partners the same rights, protections, benefits, responsibilities, obligations and duties as those granted to married couples under the law whether imposed by statute, regulation, rule, government policy, common law, or any other source of law. These rights and responsibilities extended to registered domestic partners include those provided under testamentary/probate law, employment and discrimination law, and all family law statutes including community property, spousal and child support, and adoption. Although distinct from marriage under Nevada’s Constitution, domestic partners should, in most cases, be treated as the legal equivalent of spouses with the exception listed below.
OK, Fine! So what are you supposed to do???
To comply with the Nevada Domestic Partnership Act, you should review your policies and procedures to determine if revisions need to be made to account for registered domestic partners. Generally, any reference an employee’s spouse in your employee handbook or policies should be revised to refer to “spouse and/or domestic partner.” In doing these revisions, however, you should be aware that certain benefits for spouses mandated by federal law, such as COBRA continuation health coverage and Family and Medical Leave Act leave, may not be available to domestic partners.
Also, think about your company’s forms. If you have a new hire packet that includes information about a spouse, change that to say “Spouse/Domestic Partner.”
YOU HAVE A CHOICE REGARDING HEALTH CARE BENEFITS!
The major exception to the rights extended to registered domestic partners is required employer health care benefits. Public and private employers in Nevada are not required to provide health care benefits under their applicable plan to registered domestic partners, but they may choose to do so. If you wish to extend insurance benefits to domestic partners, we suggest that you call your insurance provider to discuss whether you can and/or will offer benefits to domestic partners of your employees. Under this new law, employers who offer benefits to their employees and spouses will need to carefully evaluate each benefit and determine if they are required, or if they elect, to include domestic partners. Please keep in mind that under federal law, neither same-sex spouses nor domestic partners are generally recognized as spouses for whom favorable tax benefits apply. This would usually mean that certain tax-favored benefits (like pretax cafeteria plan or flexible spending account benefits) cannot be provided to employees who add domestic partners to group health plan coverage.
The conditions that must be met to register a domestic partnership can be found in Senate Bill 283 in the 2009 session information on the Nevada Legislature’s website: www.leg.state.nv.us. For more information on how to register a domestic partnership with the Nevada Secretary of State, go to: www.nvsos.gov/licensing/securities/domesticpartnership.asp.
© 2009 Drinkwater Law Offices
Effective October 1, 2009 (It’s coming up fast!), the State of Nevada will recognize a new civil contract between unmarried individuals who meet the requirements of the Nevada Domestic Partnership Act and who properly file registration documents with the Nevada Secretary of State. Domestic partners may be the same sex or opposite sex. The new law grants registered domestic partners the same rights, protections, benefits, responsibilities, obligations and duties as those granted to married couples under the law whether imposed by statute, regulation, rule, government policy, common law, or any other source of law. These rights and responsibilities extended to registered domestic partners include those provided under testamentary/probate law, employment and discrimination law, and all family law statutes including community property, spousal and child support, and adoption. Although distinct from marriage under Nevada’s Constitution, domestic partners should, in most cases, be treated as the legal equivalent of spouses with the exception listed below.
OK, Fine! So what are you supposed to do???
To comply with the Nevada Domestic Partnership Act, you should review your policies and procedures to determine if revisions need to be made to account for registered domestic partners. Generally, any reference an employee’s spouse in your employee handbook or policies should be revised to refer to “spouse and/or domestic partner.” In doing these revisions, however, you should be aware that certain benefits for spouses mandated by federal law, such as COBRA continuation health coverage and Family and Medical Leave Act leave, may not be available to domestic partners.
Also, think about your company’s forms. If you have a new hire packet that includes information about a spouse, change that to say “Spouse/Domestic Partner.”
YOU HAVE A CHOICE REGARDING HEALTH CARE BENEFITS!
The major exception to the rights extended to registered domestic partners is required employer health care benefits. Public and private employers in Nevada are not required to provide health care benefits under their applicable plan to registered domestic partners, but they may choose to do so. If you wish to extend insurance benefits to domestic partners, we suggest that you call your insurance provider to discuss whether you can and/or will offer benefits to domestic partners of your employees. Under this new law, employers who offer benefits to their employees and spouses will need to carefully evaluate each benefit and determine if they are required, or if they elect, to include domestic partners. Please keep in mind that under federal law, neither same-sex spouses nor domestic partners are generally recognized as spouses for whom favorable tax benefits apply. This would usually mean that certain tax-favored benefits (like pretax cafeteria plan or flexible spending account benefits) cannot be provided to employees who add domestic partners to group health plan coverage.
The conditions that must be met to register a domestic partnership can be found in Senate Bill 283 in the 2009 session information on the Nevada Legislature’s website: www.leg.state.nv.us. For more information on how to register a domestic partnership with the Nevada Secretary of State, go to: www.nvsos.gov/licensing/securities/domesticpartnership.asp.
© 2009 Drinkwater Law Offices
LABOR AND EMPLOYMENT LEGISLATION AFFECTING EMPLOYERS
Employers currently find themselves in a challenging environment both economically and politically. The economic downturn has affected employers in all industries forcing many to make difficult decisions to cut benefits and layoff employees. In addition to the economic crisis, employers are now faced with a different political climate. The lay of the land changed dramatically with the 2008 elections: the United States is now ruled by a democratic White House and Congress. President Obama has announced a new labor and employment law agenda, some of which has already been passed into law, and there will undoubtedly be significant additional changes on the horizon for employers. Much of the proposed legislation is intended to extend or broaden existing laws for the benefit of employees. In addition, Congress is currently focused on health insurance reform legislation that will directly impact the responsibility of employers for providing health insurance benefits to their employees and the costs of those benefits. With that in mind, employers need to be aware of recent changes to the law, as well as proposed legislation and regulatory changes that could significantly impact employers in the future.
There were two important employment laws passed during the first sixty days of President Obama’s administration, both of which provide significant benefits to employees:
In addition to the above changes to the law that have already taken effect, employers need to be aware of and understand legislation that may be coming. Following is proposed labor and employment legislation that could have a significant impact on employers:
In addition to the foregoing proposed legislation that is aimed directly at expanding employee benefits, President Obama and Congress are currently focused on federal health care reform which will also have an impact on employers. All three leading proposals for health care reform legislation require employers to contribute to the cost of health care for their employees in varying degrees. For example, the Senate Health, Education, Labor and Pensions (“HELP”) Committee’s Affordable Health Choices Act would require an employer with more than 25 employees to either provide health care coverage which the employer pays at least 60% of the premium, or pay a tax of $750 per year for each full-time employee ($375 per year for each part-time employee). The House “Tri-Committee” Affordable Health Choices Act would require employers with more than a threshold payroll amount to either provide health insurance coverage which the employer contributes at least 65% of the premium, or pay a percentage of payroll to the Health Insurance Exchange Trust Fund. Finally, America’s Healthy Future Act, proposed by the Senate Finance Committee Chairman, Max Bacus, would require employers with 50 or more employees who do not offer health insurance coverage to pay an assessment for each full-time employee enrolled in a state or federal insurance exchange. The assessment would be based upon tax credits and would be capped at $400 per employee.
While it is uncertain if any of the proposed health reform bills will be passed or what provisions the new law would include, it is probable that any health care reform law will include some requirement for employers to provide health insurance coverage and/or contribute to some degree in the cost of such benefits. Employers need to be aware of the proposed legislation, review their existing health insurance plans or investigate health benefits that are available, and plan for the added expense that may be imposed upon employers.
From the two employment laws that have already been passed, the labor and employment legislation agenda revealed by the new administration, and the various health care reform bills that have been proposed, it is clear that employee rights and benefits are front and center. The new agenda seeks to expand existing benefits for employees and to create additional protections. Employers need to be aware of the recent changes in the law to ensure compliance and understand proposed legislation to prepare for the changes that are coming.
There were two important employment laws passed during the first sixty days of President Obama’s administration, both of which provide significant benefits to employees:
Ledbetter Fair Pay Act (“LFPA”): Signed into law in January 2009, the LFPA significantly expands the deadline for an employee to bring a wage discrimination claim. The claimant must file a claim within 180 days of an occurrence of an unlawful employment practice, which now includes the issuance of each paycheck.
American Recovery and Reinvestment Act of 2009 (“ARRA”): Under the ARRA, signed into law by President Obama on February 17, 2009, the federal government will now temporarily subsidize up to sixty-five percent (65%) of COBRA premiums for an eligible employee and/or qualified beneficiary who loses coverage under a group health plan as a result of an involuntary termination during the period from September 1, 2008 through December 31, 2009.
In addition to the above changes to the law that have already taken effect, employers need to be aware of and understand legislation that may be coming. Following is proposed labor and employment legislation that could have a significant impact on employers:
Employee Free Choice Act: This proposed legislation would dramatically change the National Labor Relations Act (“NLRA”) by: (1) allowing for card check authorization in lieu of secret ballot elections if a majority of employees sign union authorization cards; (2) limiting the time for negotiating a collective bargaining agreement; (3) requiring mandatory mediation and binding arbitration with respect to the collective bargaining agreement; and (4) increasing penalties against employers who violate the NLRA.
Re-Empowerment of Skilled and Professional Employees and Construction Trade Workers Act (“RESPECT Act”): This proposed legislation would change the NLRA to: (1) significantly limit the number of employees that an employer can classify as a “supervisor”; (2) allow unionization of the employees newly classified as non-supervisory; and (3) provide a large new pool of potential union members.
Patriot Employers Act: This proposed legislation would offer a tax credit for employers who: (1) maintain or increase their workforce in the United States; (2) maintain their corporate headquarters in the United States; (3) provide their employees with health care and retirement benefits; (4) adopt a neutral stance towards union activity; and (5) provide pay and benefits to employees on active duty in the military.
Family and Medical Leave Expansion Act: This proposed legislation would expand the coverage of the FMLA to: (1) provide incentives for states to adopt paid leave laws; (2) apply to smaller employers than currently covered; (3) provide a leave category for addressing domestic violence issues; and (4) provide 24 hours of leave per year for parents to participate in academic activities of a child.
The Family Leave Insurance Act of 2007: This proposed legislation would enhance the current coverage of the FMLA to: (1) provide paid leave to employees; (2) apply to employers with 2 or more employees (including part-time); and (3) make employees eligible for paid leave after 6 months.
Healthy Families Act: This proposed legislation would require employers with 15 or more employees to provide paid sick leave that could be carried over from year to year.
Working Families Flexibility Act: This proposed legislation would require employers to engage in the interactive process with an employee who requests flexible work options and would require an explanation if the employer denies the request. The Act would also allow employees to file a complaint with the Department of Labor, penalties to be imposed against the employer, and federal court review.
FOREWARN Act: This proposed legislation would change the WARN Act to: (1) cover smaller employers; (2) decrease the number of employees laid off to trigger the notice requirements; (3) provide for a longer notice period; and (4) double penalties against an employer for a violation.
In addition to the foregoing proposed legislation that is aimed directly at expanding employee benefits, President Obama and Congress are currently focused on federal health care reform which will also have an impact on employers. All three leading proposals for health care reform legislation require employers to contribute to the cost of health care for their employees in varying degrees. For example, the Senate Health, Education, Labor and Pensions (“HELP”) Committee’s Affordable Health Choices Act would require an employer with more than 25 employees to either provide health care coverage which the employer pays at least 60% of the premium, or pay a tax of $750 per year for each full-time employee ($375 per year for each part-time employee). The House “Tri-Committee” Affordable Health Choices Act would require employers with more than a threshold payroll amount to either provide health insurance coverage which the employer contributes at least 65% of the premium, or pay a percentage of payroll to the Health Insurance Exchange Trust Fund. Finally, America’s Healthy Future Act, proposed by the Senate Finance Committee Chairman, Max Bacus, would require employers with 50 or more employees who do not offer health insurance coverage to pay an assessment for each full-time employee enrolled in a state or federal insurance exchange. The assessment would be based upon tax credits and would be capped at $400 per employee.
While it is uncertain if any of the proposed health reform bills will be passed or what provisions the new law would include, it is probable that any health care reform law will include some requirement for employers to provide health insurance coverage and/or contribute to some degree in the cost of such benefits. Employers need to be aware of the proposed legislation, review their existing health insurance plans or investigate health benefits that are available, and plan for the added expense that may be imposed upon employers.
From the two employment laws that have already been passed, the labor and employment legislation agenda revealed by the new administration, and the various health care reform bills that have been proposed, it is clear that employee rights and benefits are front and center. The new agenda seeks to expand existing benefits for employees and to create additional protections. Employers need to be aware of the recent changes in the law to ensure compliance and understand proposed legislation to prepare for the changes that are coming.
A SAFE HARBOR FOR “DATA COLLECTORS” IF A DATA BREACH OCCURS
On the heels of ineffective data breach notification laws, Senate bill 227, a more proactive approach, offers a safe harbor to businesses that collect personal information if a data breach occurs. Some important definitions apply:
Are you a “data collector?”
A “data collector” is defined in Nevada Revised Statute 603A as “any governmental agency, institution of higher education, corporation, financial institution or retail operator or any other type of business entity or association that, for any purpose, whether by automated collection or otherwise, handles, collects, disseminates or otherwise deals with nonpublic personal information.”
If you collect data, what constitutes “personal information?”
Personal Information is defined as a natural person’s first name or first initial and last name in combination with a (i) social security number (ii) driver’s license number or identification card number, or (iii) account number, credit card number or debit card number, in combination with any required security code, access code or password that would permit access to the person’s financial account.
So, if I am a data collector, what do I need to do to get the safe harbor?
Effective January 1, 2010, you will need to encrypt personal information that is either transmitted electronically or contained in a data storage device that has moved beyond the data collector’s control (e.g. on a laptop computer). There are specific requirements contained in the statute! If you do encrypt the data, you, as a business owner, will avoid liability if that encrypted data is lost or improperly accessed! In addition, it is possible that courts will take the encryption requirement into account in determining what constitutes negligent conduct associated with data breaches. Companies that follow the statutes may even be eligible for reductions on their insurance. All of these are good reasons to check out SB 227 in the 2009 session information on the Nevada Legislature website at www.leg.state.nv.us or at http://www.leg.state.nv.us/75th2009/Bills/SB/SB227_EN.pdf
Are you a “data collector?”
A “data collector” is defined in Nevada Revised Statute 603A as “any governmental agency, institution of higher education, corporation, financial institution or retail operator or any other type of business entity or association that, for any purpose, whether by automated collection or otherwise, handles, collects, disseminates or otherwise deals with nonpublic personal information.”
If you collect data, what constitutes “personal information?”
Personal Information is defined as a natural person’s first name or first initial and last name in combination with a (i) social security number (ii) driver’s license number or identification card number, or (iii) account number, credit card number or debit card number, in combination with any required security code, access code or password that would permit access to the person’s financial account.
So, if I am a data collector, what do I need to do to get the safe harbor?
Effective January 1, 2010, you will need to encrypt personal information that is either transmitted electronically or contained in a data storage device that has moved beyond the data collector’s control (e.g. on a laptop computer). There are specific requirements contained in the statute! If you do encrypt the data, you, as a business owner, will avoid liability if that encrypted data is lost or improperly accessed! In addition, it is possible that courts will take the encryption requirement into account in determining what constitutes negligent conduct associated with data breaches. Companies that follow the statutes may even be eligible for reductions on their insurance. All of these are good reasons to check out SB 227 in the 2009 session information on the Nevada Legislature website at www.leg.state.nv.us or at http://www.leg.state.nv.us/75th2009/Bills/SB/SB227_EN.pdf
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