Labor and Employment Issues Facing Nevada Employers

1. Labor and Employment Issues Facing Nevada Employers Presented by Lionel Sawyer & Collins Cam Ferenbach, Esq., Shareholder, Lionel Sawyer & Collins Steve Shapiro, Senior Vice President & General Counsel, Lake Las Vegas Resort

2. Legislative Session 2005: AB 44 • The Old Overtime Exemption, NRS 608.018 • NRS 608.018 governs the payment of overtime to non-exempt employees in Nevada • Non-exempt employees were entitled to overtime if: • They worked more than forty (40) hours a week; or • They worked more than eight (8) hours a day and earned less than one and one-half the minimum wage per hour ($7.73/hour)

3. Legislative Session 2005: AB 44 • The Old Overtime Exemption • NRS 608.018 specifically exempted from its coverage employees who received compensation at a rate of one and one-half the minimum wage ($7.73/hour) • An employee with an overtime claim had no redress with the Nevada Labor Commissioner • Only recourse was the Department of Labor

4. Legislative Session 2005: AB 44 • AB 44 • Legislative session passed AB 44 in 2005 • Purpose to amend NRS 608.018 to eliminate the exemption from Nevada’s overtime laws for employees earning $7.73/hour • Result, non-exempt employees with overtime claims can now bring those claims with the Nevada Labor Commissioner

5. Legislative Session 2005: AB 44 • What does this mean? • Employees have a friendlier forum for overtime claims • Increase in State policing of employers: • Proper classification of employee as exempt or non-exempt • Proper payment of overtime to employees

6. Legislative Session 2005: AB 44 • Consider an audit of your employees to determine correct classification • Ensure compliance with August 2004 changes to Fair Labor Standards Act & Nevada’s AB 44

7. Will Your Defense Stand Up? • How will you defend yourself in a harassment or discrimination case? • Do you have an employee handbook or policies against harassment and discrimination? • Not just harassment, but discrimination too • Not just sexual harassment but all forms of harassment

8. Will Your Defense Stand Up? • Ellerth-Faragher Affirmative Defense • What is it? • No tangible adverse employment action against employee; • Evidence employer took steps to prevent and correct harassing conduct; • Employee unreasonably failed to use policy to complain of harassing conduct

9. Will Your Defense Stand Up? • Ellerth-Faragher Affirmative Defense • Original application in hostile work environment sexual harassment cases • No longer applies solely to sexual harassment claims • Wright-Simmons v. The City of Oklahoma City, 10th Cir. 1998: Racial harassment • Wallin v. Minn. Dep’t of Corr., 8th Cir. 1998: Disability harassment • Oleyar v. County of Durham, M.D.N.C. 2004: Age harassment

10. Will Your Defense Stand Up? • Ellerth-Faragher Affirmative Defense • What about the 9th Circuit? • Only Three District Court Cases • El-Hakem v. BJY Inc., D.Or. 2003: Racial harassment (Section 1981 claim) • Hogan v. Henderson, D.Ariz. 2000: Racial harassment • Williams v. Multinomah Educ. Services Dist., D.Or. 1999: Racial harassment (unreported)

11. Will Your Defense Stand Up? • Ellerth-Faragher Affirmative Defense • Other Circuits have applied the defense in race and national origin, ADEA, ADA cases • Only a matter of time for Ninth Circuit

12. Will Your Defense Stand Up? • What should you do? • Review employment policies and procedures • Ensure prohibition on all forms of harassment and discrimination • Conduct annual employee and management training on all forms of harassment and discrimination

13. Early Neutral Evaluations • The Beginning… • Special Order 102, adopted in 1997 • For two years, ½ all employment cases were randomly assigned to Early Neutral Evaluation Program (“ENE”) • Results From Participant Questionnaires: • Increased early settlement/resolution • Lower mean cost of litigation • Reduced litigation time

14. Early Neutral Evaluations • ENEs were officially adopted for use in all employment cases in 2000 • Proposed Local Rule 16-6 • All employment cases • Greater detail of Magistrate’s role than Special Order 102 • Presentation of claims, defenses • Stipulations of fact • Damages assessment • Discussion of expedited discovery

15. Early Neutral Evaluations • ENE Process • Within 10 days of responding party’s appearance, notified of assignment to ENE • Court will scheduled ENE session within 75-days of responding party’s appearance • Parties, insurers and counsel must attend (exceptions may be granted)

16. Early Neutral Evaluations • ENE Process • The ENE Statement • CONFIDENTIAL • Outline facts and educate Judge on the law • Discuss significant factual, legal issues • Provide copies of relevant documents • Attendance at the ENE • Informal atmosphere • Conducted like mediation • Be prepared to stay all day

17. Early Neutral Evaluations • Utility of ENE • Serious early evaluation of facts and claims, identify potential exposure • Assess opponent, client, taste for litigation • Judge’s perspective on success or failure – for both sides • Legitimate opportunity to discuss settlement • If at first you don’t succeed, try and try again

18. Labor and Employment Issues Facing Nevada Employers Presented by Lionel Sawyer & Collins Cam Ferenbach, Esq., Shareholder, Lionel Sawyer & Collins Steve Shapiro, Senior Vice President & General Counsel, Lake Las Vegas Resort March 2006