Nevada Legislature Passes Hospitality And Travel Workers Right To Return Act

The Nevada Legislature passed Senate Bill 386 before ending its session on May 31, and we anticipate the Governor’s approval of this Bill very soon. As we previously described, Senate Bill 386 has two components: (1) it gives hospitality and travel workers in Clark and Washoe counties a right to recall; and (2) amends the COVID-19 requirements for public accommodation facilities. The first component, the Nevada Hospitality and Travel Workers Right to Return Act (“Right to Return Act” or “Act”), is discussed in detail below.

Which employers does the Right to Return Act apply to?

It applies to employers with 30 or more employees (currently or as of March 12, 2020) that own or operate an airport hospitality operation, an airport service provider, a casino, an event center or a hotel that is located in a county whose population is 100,000 or more (Clark and Washoe counties). The term “casino” means a licensed gaming establishment (nonrestricted). The term “hotel” includes resort hotels or any other residential building that is designated or used for lodging that contains not less than 200 guest rooms or suites. The definitions for hotel and casino include contracted, leased or sublet premises that are connected to or operated in conjunction with the hotel or casino, such as restaurants, bars, and retail stores.

Which employees does the Right to Return Act apply to?

The Right to Return Act excludes only three types of employees: (1) those who are exempt from the Fair Labor Standards Act (FLSA) under the managerial and executive exemption; (2) those engaged as theatrical or stage performers, including at an exhibition; or (3) those who were laid-off pursuant to a valid severance agreement. Employees covered by a collective bargaining agreement are not excluded from coverage; however, their rights to recall under any CBA supersede the Right to Return Act. As such, if there is a conflict between the CBA and the statute, the CBA will control.

With regard to job offers, a “laid-off employee” is an employee who was employed for at least 6 months during the 12 months before March 12, 2020 and whose most recent separation from active service occurred after March 12, 2020 and was due to a governmental order, lack of business, reduction in force or another economic, nondisciplinary reason.

What does the Right to Return Act require employers to do?

1. Provide notice in the event of a layoff and give retroactive notice for those already laid off. Section 20 of the Right to Return Act addresses this notice in detail. For employees already laid off, employers must give retroactive notice by July 21, 2021. The notice must inform affected employees of the effective date of the layoff, their rights to reemployment pursuant to the Act, and contact information for the employer’s representative who has been designated to receive an employee’s written notice of an alleged violation of the Act.
2. Retain records for 2 years after an employee is laid-off. Section 21 details the record-keeping requirements of the Act, which include information regarding the laid-off employees and documents proving compliance with the Right to Return Act.
3. Offer laid-off employees jobs which become available after July 1, 2021 for which they are qualified. Section 22 sets forth the right to return requirements of the Act. A laid-off employee is qualified for a job if he/she held the same position at the time of his/her most recent separation from active service or held a similar position within the same job classification at the time of his/her most recent separation from active service with the employer. Employers must give the laid-off employee at least 24 hours to accept or decline the offer to return, and the laid-off employee must be available to return to work within 5 calendar days after accepting the offer. If more than one laid-off employee is entitled to a position, the employer must first offer the position to the laid-off employee with the greatest length of service. An employer may extend simultaneous conditional offers of employment to laid-off employees with a final offer of employment conditioned on application of the order of preference set forth by the Act. Section 22 also details a mechanism by which an employer can cease offering jobs to a laid-off employee.  
4. Provide notice to laid-off employees not recalled. An employer who declines to recall a laid-off employee because the employee lacks qualifications and hires a person other than the laid-off employee shall, not later than 30 days after making that decision, provide the laid-off employee with a written notice of the decision identifying all the reasons for the decision.

What does the Right to Return Act prohibit employers from doing?

Section 23 of the Right to Return Act prohibits an employer from retaliating against  any person who seeks to enforce his/her rights under the Act, participates in proceedings provided by the Act, or who mistakenly, but in good faith, alleges noncompliance with the Act. Unlike other Nevada statutes that prohibit retaliation, however, the Right to Return Act adds a dangerous evidentiary component. It provides that if a laid-off employee alleges in good faith that the employer violated the Right to Return Act and the employee suffers an adverse action within 60 days, the adverse action will be presumed retaliatory. The employer can rebut this presumption by proving that the true and entire reason for the adverse action was a legitimate business reason.

How will the Right to Return Act be enforced?

An employee who believes the Right to Return Act has been violated must provide the employer with written notice of the alleged violation and any facts known by the employee to support the allegation. The employer has the opportunity to immediately cure any alleged violation. The employee must wait 15 days after the employer’s receipt of the notice to proceed with their complaint. The Right to Return Act gives the employee the ability to choose whether to file a complaint with the Nevada Labor Commissioner or immediately file a lawsuit. 

An employee who proves a violation of the Act may receive hiring or reinstatement, future and back pay, including the value of the benefits which the laid-off employee would have received, and attorney’s fees. An employer and/or its agent may also be ordered to pay a civil penalty of $100 for each employee whose rights are violated as well as compensatory and liquidated damages in the amount of $500 for each day until the violation is cured.

When does the Right to Return Act take effect?

This law takes effect on July 1, 2021. It will continue to be in effect until August 31, 2022 unless Governor Sisolak has not yet terminated the emergency described in the March 12, 2020 Declaration of Emergency for COVID-19 by that date.  

Conclusion

We encourage all employers covered by the Right to Return Act to carefully review the enrolled text of Senate Bill 386. As with any new, detailed law, there will be many questions about how to apply the Bill. KZA will hold a summer webinar to discuss all new labor and employment laws passed by the Legislature. In the meantime, please contact a KZA attorney with your questions.

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.