2009 Legislature Closes With Several New Important Employment Laws

Volume 8, Issue 11
July 22, 2009

On June 1, 2009, the 2009 Session of the Nevada Legislature closed with the enactment of several laws which will impact Nevada employers, including a new requirement that certain employers grant unpaid "school leave" to employees with children. A summary of each new law is below.

Assembly Bill 243 - New Employee Leave Rights for School Activities:

This bill requires employers with 50 or more employees to provide parents, guardians or custodians of children in public or private school four hours of unpaid leave per school year per child for the following purposes: · to attend parent-teacher conferences;· to attend school-related activities during regular school hours;· to volunteer or otherwise be involved at the school in which the child is enrolled during regular school hours; and · to attend school-sponsored events.

The leave must be taken at a time mutually agreed upon by the employer and the employee and must be taken in increments of at least 1 hour. The employer may require the employee to make a written request for the leave at least 5 school days before the leave is taken and to provide documentation that the employee actually used the leave for a proper purpose.

The bill also expands existing Nevada law, at Nevada Revised Statutes 392.920, to provide that an employer may not terminate, demote, suspend or otherwise discriminate against a parent, guardian or custodian of a child who appears at a conference requested by an administrator of the school, is notified during work by a school employee of an emergency regarding the child, or who takes leave pursuant to the new law.

The bill removes an employee's right to file a lawsuit for a violation of NRS 392.920 and requires employees to instead file a claim with the Nevada Labor Commissioner. The bill rather oddly requires the employer to provide the employee with "all the forms necessary to request . . . a claim or complaint" with the Labor Commissioner. If the Commissioner finds a claim to be valid and enforceable, he is required to provide notice and an opportunity for a hearing. Upon a finding in favor of the employee, the bill gives the Labor Commissioner unprecedented power to remedy violations by reinstating an employee wrongfully discharged under the law and awarding back pay and lost benefits, damages equal to the amount of the back pay and benefits, and the administrative penalties already authorized under NRS Chapters 607 and 608.

The school leave bill takes effect on August 15, 2009. Employers with 50 or more employees should plan to amend their leave policies to afford this new type of leave by August. Moreover, all employers - large and small - should keep in mind the anti-discrimination components of NRS 392.920 to ensure that discipline or other adverse actions are not unwittingly taken against an employee who appears at a conference requested by an administrator of the school or is notified during work by a school employee of an emergency regarding the child. Indeed, an employee who misses work because of such events should not accrue attendance points or experience other adverse consequences.

Assembly Bill 410 - Ability to Modify Worker's Compensation Obligations Through Union Labor Agreements:

AB410 broadens the ability of employers and unions to enter into labor contracts that alter some of the normal worker's compensation procedures. Specifically, AB410 allows employers and unions to: (1) establish their own processes for alternative dispute resolution which will have the same force and effect as the decision of an administrative hearing officer or administrator as applicable; (2) designate a specified and exclusive list of medical treatment providers to be used for worker's compensation purposes; (3) create joint safety committees comprised of both employer and union representatives; (4) design programs for light-duty and modified job responsibilities; and (5) implement a vocational rehabilitation program with a specified and exclusive list of service providers. However, any such labor agreement cannot reduce an employee's entitlement to compensation for any disability, vocational rehabilitation services or medical treatment fully paid for by the employer. The bill was passed by both Houses and vetoed by the Governor. However, the Assembly and Senate overruled the Governor's veto to pass the law, which became effective July 1, 2009.

Given this new state law, unions now have one more "mandatory subject of bargaining," that they can compel employers to negotiate over pursuant to their federal labor law obligations under the National Labor Relations Act. In turn, employers who have unionized workforces may be able to exert some additional control over and streamline their worker's compensation processes, but at what overall cost? It will indeed be interesting to see how these newly created rights impact the nature of labor negotiations throughout the state and whether or not the balance of power shifts even further toward organized labor organizations.

Assembly Bill 546 - Changes to Nevada's Mini-COBRA Law:

AB546 made two significant sets of changes to the often overlooked Nevada laws on employee and dependant health insurance continuation rights for those who work for employers with less than 20 employees. These state laws, commonly referred to as Nevada's "Mini-COBRA" laws, are found at NRS 689B.245 through 689B.249 and NRS 689C.340 through NRS 689C.348.

First, AB546 reduces the statutory cap on the amount an employer can charge for continued health insurance coverage from 125% to 110% of the premium the insurer charges the employer. This is bad new for small employers and their insurers as the additional amount charged above the insurance premium was designed to compensate employers and/or their insurers for the administrative costs associated with complying with mini-COBRA. However, the premiums for continuation coverage must now be paid monthly instead of quarterly.

Second, AB546 provides for the application of the expanded continued health insurance coverage rights and associated federal tax credits available under the recent federal Stimulus Bill, more formally known as the American Recovery and Reinvestment Act of 2009 ("ARRA"), to persons involuntarily terminated after September 1, 2008 through December 31, 2009. It also provides a "second chance" for individuals (and their dependants) who where involuntarily terminated on or after September 1, 2008 but on or before February 16, 2009, and were eligible for continuation coverage at the time of termination, to elect continuation coverage after receiving a required notification from the employer, which is open until August 31, 2009. Coverage under the "second chance" provisions is only retroactive to May 1, 2009. Insurers who offer group health insurance to small employers had fourteen (14) days from the bill's enactment to notify such employers by certified mail of the insurers' obligations to offer this type of expanded continuation coverage and the employers' duty to notify all covered employees within fourteen (14) days after receiving the relevant information from their insurer, including all the necessary forms.

Under AB546, a 65% federal tax credit for the continued coverage premiums is also available to the insurers who are providing the 65% premium subsidy to the separated employees, which can last up to nine (9) months, but only for premiums for the first period of coverage beginning in March 1, 2009. This federal subsidy is only available on a go-forward basis and not retroactive. The Nevada Division of Insurance issued guidance on this new law on June 3, 2009, which provides other important information. 

Small employers who have not heard from their insurers yet are strongly encouraged to contact them immediately to better understand their time sensitive obligations under this new law.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.