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Whistleblower Protections for Nevada Public Employees

The decision to go to authorities with complaints about an employer’s wrongful or illegal behavior is never an easy one. Whistleblower statutes attempt to reduce the hazards involved with coming forward by shielding employees who come forward with good faith concerns about potentially wrongful behavior from retaliation by their accused employers. Nevada and federal law both provide a range of protections for public employees who come forward as whistleblowers. Nevada’s public employee whistleblower law can be found at NRS 281.611 through 671. Broadly, the statute is designed to protect state and local government employees from retaliation for reporting “improper governmental action.” This term casts a broad net, capturing actions by state or local officers and employees taken in the performance of official duties that is:
  • In violation of a state law or regulation.
  • In the case of local agencies, in violation of a local ordinance.
  • Abuses authority.
  • Presents a substantial and specific danger to the public health or safety.
  • Is a gross waste of public money.
The law protects a broad range of individuals who work for the state or a local government agency, including elected officials, political appointees, and individuals who perform public duties for compensation. State and local officers and employees are may not use their official authority to threaten, coerce, command, or otherwise influence a person who wishes to disclose improper government action. This includes taking adverse employment actions against the whistleblower, which includes everything from outright termination to unwarranted negative employment reviews. To be actionable under the statute the retaliation must have taken place within two years of the disclosure of information. A claim of wrongful reprisal for whistleblowing can be made by submitting a form to the Department of Administration Human Resource Management division. In addition to Nevada’s general whistleblowing statute protecting public employees, other state and federal laws may be germane to specific cases:
  • Section 250 of the Nevada False Claims Act protects employees and contractors who report fraud in government contracts.
  • State common law recognizes that an employer’s retaliation against a whistleblowing employee violates public policy that favors disclosure of wrongdoing. “Public policy” is a specific legal concept that draws upon principles set forth in statutes and elsewhere. For public employees, one source of public policy rationales for whistleblowing is Nevada’s Ethics in Government
  • The federal Occupational Safety and Health Administration (OSHA) enforces whistleblowing protections under a wide range of federal laws.
A public employee who is thinking about reporting bad behavior by an employer should consider consulting with an attorney before taking actions that could result in retaliation. Ideally a whistleblower gets ahead of potentially illegal reactions by an employer. At Greenman Goldberg Raby Martinez we provide personal, caring counsel to each client. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request on our contact page.

Suing an Employer for Intentional Infliction of Emotional Distress

Employers can have powerful influence over their employees’ mental health. Job-related stress, whether from management pressure or other factors, is a common problem. Personality conflicts, disagreements over job responsibilities, and unreasonable demands are an ordinary part of work. But sometimes an employer’s behavior edges into abuse. In extreme cases, the employee may be able to sue the employer for intentional infliction of emotional distress. When thinking about wrongful behavior by an employer it’s worthwhile to keep in mind that “the employer” is not just the owner of the company or the employee’s direct manager, but can mean any agent of the business. An employer can be held responsible for actions taken by any of its employees during working hours provided that the employer is aware of the employee’s wrongful behavior. Nevada law requires plaintiffs who sue for intentional infliction of emotional distress to prove four things:
  1. The defendant’s conduct must have been extreme and outrageous. The sort of behavior that meets this standard can be the focus of court arguments. Whether the employer’s behavior was “extreme and outrageous” is determined according to the context of the behavior and the social norms surrounding it. Proving that the behavior happened can be a critical factor—having coworkers available to corroborate the plaintiff’s story can be very helpful.
  2. The defendant intended to cause the plaintiff’s emotional distress, or recklessly disregarded the harm being done to the plaintiff. It isn’t enough that a manager is harsh or rude in general. There are two paths to recovery: either the manager must have wanted the employee to suffer, or the manager ignored signs that the employee was suffering and continued a bad behavior.
  3. The plaintiff actually suffered extreme or severe emotional distress. Proving actual injury is a basic requirement for recovering damages in litigation. There are numerous ways to prove emotional harm, including testimony from psychiatric professionals, family and friends who have observed the plaintiff’s suffering, or testimony from coworkers as to how the employer’s actions affected the plaintiff.
  4. The defendant’s conduct caused the plaintiff’s distress. A common tactic used by defendants is to look for alternative causes of the plaintiff’s emotional injury. For example, if the plaintiff has a mental health condition such as clinical depression that is unrelated to work, it may be difficult to show that the employer’s actions were solely responsible for the plaintiff’s injury.
Miller v. Jones, 114 Nev. 1291, 1299-1300 (1998). Generally speaking, the more outrageous the employer’s behavior, the more likely the plaintiff will be able to recover damages. Bad behavior can be systematic and repetitive: for example, a manager who mocks an employee’s appearance day after day and doesn’t stop after the bullying visibly affects the employee. A single incident can also be outrageous. For example, an HR manager who announces embarrassing details of an employee’s criminal background check at a work lunch may be engaging in bad behavior that meets the standard, provided the other elements are present. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients in the Las Vegas area. If you have endured severe emotional harassment at work, call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

Responding to a Coworker’s Hate Speech

Responding to a Coworker’s Hate Speech
Speech and speech-like activities, like wearing slogans on clothing or hanging posters, can sometimes veer into uncomfortable territory at work. The idea of “hate speech” has been with us as a legal concept for more than two decades now. It doesn’t have a fixed definition in U.S. law. One way to define it is as any expression that is intended to call out a group or class of persons, such as members of a specific race or religious sect, for ridicule, humiliation, or hatred. Although hate speech may be offensive, it is not, by itself, illegal. Last year the U.S. Supreme Court explained it this way: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.” Matal v. Tam, 582 U.S. ___ (2017). In short, the First Amendment of the U.S. Constitution protects most speech from being regulated by the law. Regulating hate speech is difficult in part because its definition is ambiguous. What kind of speech constitutes “inciting hatred” against a group? Can a member of a group incite hatred against his or her own group? Where does mere criticism, however harsh, end and hatred begin? Answering these questions is not easy, and to a certain degree their answers are left to the particular sensibilities of the listener. That does not mean that offensive speech at work should go unchallenged. A critical first step is to notify a manager about the problem. There are several reasons why employers should take action to put a stop to hate speech among their workers:
  • Antidiscrimination laws. Hate speech can create a hostile work environment for people who are members of the targeted group. Hate speech that is frequent or severe enough, together with other facts, may expose the employer to questions about discriminatory practices. An employer has an obligation to take reasonable steps to prevent harassment in the workplace.
  • Emotional distress. Being verbally ridiculed or threatened at work can be emotional traumatizing. If the employer does not take steps to stop the bad behavior it may be facilitating the harm.
  • Preventing violence. Hate speech often has an inciteful character, intended to encourage violence or abuse and potentially inviting a similar reaction from people who are offended by it. Employers have a strong incentive to diffuse tensions between employees before they escalate into a more serious situation where people might get hurt.
The law firm of Greenman Goldberg Raby Martinez represents working people in the Las Vegas area in cases involving personal injury, discrimination, and other disputes. If you have questions about how to handle hate speech in your workplace call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

Protecting Hotel Workers from Harassment by Guests

Protecting Hotel Workers from Harassment by Guests
One of the key issues raised by hotel workers in the major strike earlier this year was the prevalence of sexual harassment by guests. The issue raised important questions about how hotels address bad behavior by guests, and the options for workers who feel abused by guests but unsupported by their employers. A worker who feels that they have been harassed by guests should bear a number of things in mind.
  • Take the high ground. A major challenge for hotel workers who face harassment is that they are often placed in a situation where they must choose whether to confront the harassment immediately or effectively accept it as part of the job. One hopes that a manager will respond appropriately to a guest behaving rudely, at a minimum by ensuring that the harassed employee is permitted to avoid the offending guest. But in the moment it is important for the worker to not react in a way that could give the guest ground to stand on. For example, it’s important not to threaten or hit a guest.
  • Do not remain in a dangerous situation. Taking the high ground doesn’t mean allowing yourself to be placed at risk. Where possible, avoid being alone with offensive guests.
  • Report the incident to management. Managers who do not take appropriate action in response to a dangerous situation at work are not fulfilling their obligation toward employees. Except in cases where the guest has committed a clearly illegal act—for example, groping or other unwanted physical advances—management probably has discretion to address the problem as it sees fit.
  • Consult with union resources or a private attorney if management doesn’t act appropriately. If a manager refuses to take any action to protect workers from guest harassment, consider reaching out to your union reps or consulting with an outside attorney to determine whether other steps can be taken to bring the issue to light in a way that protects your rights. This latter point is vital. Unscrupulous employers may attempt unlawful retaliation against an employee who brings these kinds of complaints. Even if the employer isn’t likely to retaliate, the worker’s argument can only benefit from a professional approach.
Whether the worker can sue a guest for sexual harassment will depend on a range of factors, including the extent to which the worker has waived such rights under a collective bargaining agreement or employment contract. An attorney can help you take stock of the facts and examine whether a civil suit for damages is appropriate.

GGRM represents clients in the Las Vegas area

The law firm of Greenman Goldberg Raby Martinez has a long history of helping working people in Las Vegas protect their rights. We are happy to help someone who has been victimized by harassment work through their legal options. For a free attorney consultation about your case, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Mandatory Arbitration and Employment Class Action Suits

Mandatory Arbitration and Employment Class Action Suits
Over the last decade employers have increasingly added mandatory individual arbitration clauses to their employment agreements. These clauses require any dispute between the employee and employer to go through arbitration instead of litigation, and prohibit employees from grouping together to pursue litigation as a class. Employers prefer this arrangement in part because arbitration is faster and cheaper than conventional litigation, but workers who have serious grievances against their employers often feel that the clauses are unfair.

Federal law favors arbitration

Employees who try to escape their arbitration agreement with employers face a difficult legal road in courts unless there are technical problems with the contract that might make it otherwise unenforceable. One reason for that is the Federal Arbitration Act (FAA), a law that the U.S. Supreme Court has ruled preempts state laws that would otherwise seek to limit the enforceability of arbitration clauses. The FAA provides that federal and state courts must enforce arbitration agreements unless they are invalid on other contract grounds, such as fraud or unconscionability. The U.S. Supreme Court has interpreted the FAA to essentially override state laws that seek to limit arbitration in certain areas, such as employment contracts. In May its decision in Epic Systems Corp. v. Lewis, No. 16-285 (May 21, 2018), garnered media attention by tossing out California’s judicial precedent that disfavored mandatory individual arbitration clauses in employment contracts. Some have interpreted Epic Systems to mean that employers can escape class action lawsuits for employment disputes simply by requiring all employees to enter into arbitration agreements as a condition of employment. Although the ruling related to a California case, its holding probably will be applied to Nevada cases as well.

Pursuing a remedy within the scope of an arbitration agreement

In a nutshell, the Epic Systems case confirmed that employees cannot simply argue that such clauses are invalid for being unconscionable as a matter of course. The FAA’s protection for arbitration clauses requires employees who want to invalidate their employment contracts to find other reasoning. As such, employees may be limited in their ability to band together to protect their rights. That does not mean that an employee who has signed an arbitration agreement is without legal recourse. Arbitration proceedings can be to the employee’s benefit as well. Arbitration tends to be faster and cheaper than ordinary litigation. Even though arbitration can have downsides, like confidentiality and potential bias among arbitrators who see employers as potential clients, an employee with a legitimate grievance should not hesitate to pursue an action anyway.

Call a Las Vegas attorney to discuss your case

The law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area recover compensation for over 45 years. If you have concerns about how the arbitration clause in your employment agreement may affect your rights to pursue legal action against your employer, call us today for a free consultation. We’re available at 702-388-4476 or contact us through our website.

Suing for Unpaid Wages in Nevada

Suing for Unpaid Wages in Nevada
Employers that don’t pay their employees the wages they have earned are unfortunately an all-too-common problem. Whether unpaid wages have been accrued through uncompensated overtime, violations of minimum wage requirements, or withheld tips, employers should not be allowed to get away with what amounts to theft. Workers who are victims of wage violations have legal recourse available. Wage and hour laws are complicated, reflecting the many competing interests in the labor marketplace. One source of complexity is the interplay between state and federal laws. Both federal and state law set minimum wage and other basic labor standards. For many workers in Nevada, the provisions of Chapter 608 of the Nevada Revised Statutes will provide the first line of defense against wage theft. Chapter 608 provides the framework for a wide range of wage and hour matters for most employers in Nevada. Here are some of the chapter’s provisions:
  • Employers cannot require employees to work without compensation during a “trial period.” NRS 608.016.
  • Employers cannot discriminate on the basis of sex to pay workers of one sex less than what is paid to workers of the other sex for the same work. NRS 608.017.
  • Eligible employees must be paid time-and-a-half for overtime (more than 40 hours per week or 8 hours per day for employees who work five days a week). NRS 608.018.
  • Employers must immediately pay unpaid wages and other accrued benefits to an employee who is fired. An employee who quits must be paid all accrued amounts within seven days or on the regular payday, whichever comes first. NRS 608.020, 608.030.
  • Employers are required to establish regular paydays. NRS 608.080.
  • Employers cannot require employees to refund earned wages or decrease compensation without at least seven days’ notice. NRS 608.100.
  • Employers must maintain detailed wage records. NRS 608.115.
An employee who has had wages unlawfully withheld or unpaid has a number of legal tools available. First, the law provides that employees who are fired or laid off obtain a lien against the employer’s property for unpaid wages until they are paid in full. NRS 608.050. Second, in the event of a successful lawsuit to recover unpaid wages the employer must pay the employee’s reasonable attorney fees. NRS 608.140. This second point is crucial: an employee need not hesitate to seek legal help for the recovery of wages solely out of concern about legal fees. Finally, a worker can also file a complaint with the Nevada Labor Commissioner. The Commissioner has the authority to pursue administrative as well as criminal charges against employers who violate wage and hours laws. Bringing the authority of the state to bear against an employer who has acted in bad faith can be a powerful tool for recovering what is owed and preventing future violations. The law firm of Greenman Goldberg Raby Martinez represents working people in the Las Vegas area. If you have questions about how to pursue unpaid wages we can help. Call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

Recreational Marijuana Use by Nevada First Responders

Recreational Marijuana Use by Nevada First Responders
In 2017 Nevada joined a number of other states in decriminalizing the recreational use of marijuana. Although a marijuana user doesn’t face criminal prosecution under state law, other restrictions remain in place, from federal prohibition to state and local ordinances limiting when, where, and how it can be used. Employers also remain free to enforce drug policies. Decriminalization has not changed the tight restrictions against drug use for members of the state’s first responder community.

Workplace restrictions against marijuana use remain unchanged

The statute governing legalization of recreational marijuana use in Nevada, NRS Chapter 453D, makes clear that the sole object of the law is to remove most criminal penalties for using or possessing the drug. The law expressly leaves in place penalties for driving under the influence of marijuana, providing it to people who are under the age of 21, or possessing it on school grounds. Chapter 453D also permits public and private employers to prohibit or restrict marijuana use by their employees. NRS 453D.100(2)(a). A first responder should assume that his or her employer’s policies regarding marijuana use remain in effect. And one should not assume that the legalization of recreational use loosens drug testing standards. Just as before the law was passed, a first responder should take care to avoid being exposed to second-hand smoke, which likely will become a greater challenge for some first responders.

Recreational marijuana use can affect a first responder’s career in several ways

A first responder who is not routinely tested for marijuana use should not think that taking advantage of the state’s relaxed laws is a good idea. The most obvious issue is that an employer will have cause to terminate an employee who violates its drug policy, which could jeopardize not only a career but also earned pension and other benefits. There are several other ways that recreational use could affect one’s career. Perhaps the most important issue is federal prohibition. Even though state law no longer criminalizes marijuana use, it remains a Schedule I narcotic for federal purposes. Federal criminal charges are still possible and would carry the same consequences as any other criminal offense, regardless of state law. Another potential problem is the risk marijuana use poses to workers’ compensation coverage for work-related injuries. A workers’ comp insurance claim could be denied if the insurer has reason to believe that the employee’s injury occurred while under the influence of a controlled substance. NRS 616C.230(1)(d). Marijuana’s active ingredient can remain in the bloodstream for a long time after initial use, creating a risk that it could be present even if the injured employee is sober at the time of the accident. It’s best to not give an insurer a justification for denying a claim.

GGRM is here to answer first responders’ questions

The law firm of Greenman Goldberg Raby Martinez proudly serves clients in the Las Vegas first responder community. If you have questions about how the legalization of recreational marijuana affects you or your career, reach out to us today for a free, confidential attorney consultation. Call us at 702-388-4476 or send us a request through our site.

Professional Musicians and Hearing Loss

Professional Musicians and Hearing Loss
Hearing loss is a common problem among professional musicians. It isn’t just a problem for rock n’ rollers who keep their amplifiers dialed to eleven. Classical musicians also face a serious risk of long-term ear damage. Degraded hearing can affect a musician’s career, especially if it is serious enough to make playing with others too difficult.

Workers’ compensation for hearing loss

Musicians who have the benefit of working for a regular employer in Nevada should be able to rely upon their employers’ workers’ compensation insurance coverage to provide benefits in the event that work-related hearing loss requires treatment or even a career change. Coverage should be provided regardless of whether the musician is characterized as an employee or an independent contractor, provided the work is regular and the musician hasn’t signed a contract agreeing to be excluded from the broad definition of “employee” under Nevada law. For a musician who qualifies for workers’ compensation benefits, a key question will be whether the hearing loss arose in the course and scope of employment. An insurer will require an independent evaluation intended to explore alternative sources of the hearing loss. Musicians can take a number of steps to protect their hearing and reduce the chances of a claim being denied:
  • Wear hearing protection, especially when not at work. For example, musicians who are also gun enthusiasts should wear protection while shooting.
  • Get routine hearing tests to establish a record and catch problems early.
  • Avoid performing in loud settings outside of work. For example, an orchestra trumpeter who moonlights in a jazz band probably will face questions about whether the jazz band was responsible for some or all of the hearing loss.

Not all musicians are entitled to workers’ compensation

Of course, most musicians pursue their art as a side job, without a steady employer. Under NRS 616A.110(3) workers’ compensation coverage need not cover a musician who is hired on a casual basis for a gig that doesn’t last more than two consecutive days and doesn’t recur for the same employer. The object of the rule is to carve out special events, like weddings, so their organizers aren’t on the hook for expensive insurance. On its face, the exception wouldn’t put a semi-professional setting like a community theater off the hook. But it likely covers most venues who hire musicians for one or two nights. Musicians who don’t work for an agency but who earn a steady living doing impromptu gigs may want to consider buying insurance for themselves. The cheapest form of insurance, of course, are custom-made ear plugs designed for musicians. Although initially expensive, they are significantly cheaper than the long-term consequences of ear damage.

GGRM is a Las Vegas law firm

The law firm of Greenman Goldberg Raby Martinez represents clients in the Las Vegas area in personal injury and workers’ compensation cases. If you have suffered hearing loss as a consequence of your work as a musician, our attorneys are happy to discuss your legal options with you. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.

When Can EMS Professionals Use Force?

When Can EMS Professionals Use Force?
From time to time an EMS professional will encounter a belligerent or physically aggressive patient. Whatever the cause of the patient’s aggression—mental health challenges, alcohol or other substance abuse, or some other issue—for EMS the challenge will be to resolve the situation in a way that is safe for everyone involved and gets the patient the care he or she needs. Here are some things to keep in mind when making the decision to use force to restrain a patient.
  • A patient’s aggressive behavior may be a sign of a serious medical condition.

The first thing to bear in mind about someone who is behaving erratically or violently is that he or she may be experiencing a serious medical event that requires immediate intervention. A diabetic may become delirious due to low blood sugar levels, or a drug user may be experiencing symptoms of overdose or withdrawal. Such conditions aren’t always easy to identify in the field and can only be diagnosed properly once the patient is at the hospital. Using force to restrain a patient may be necessary to save his or her life. In legal terms, a patient can be deemed to give implied consent to treatment in emergency or life-threatening situations. Unfortunately, some situations will be clearer than others. A patient who is clearly delirious and unaware of what’s happening probably would want to be helped if in his or her right mind. But a slightly drunk patient who was just dumped by his girlfriend may simply be angry and may still have the legal capacity to refuse treatment.
  • Restrain with care.

Any time a person is restrained there is a risk of injury. In every event, it is best to begin with verbal engagement and only move on to physical methods if talking just isn’t going to work. There are a number of principles to bear in mind when using physical restraints. An EMS professional should never attempt to physically restrain a patient without police present. And care must be taken to ensure that restraints do not impede the patient’s circulation or breathing. Some EMS professionals have faced the threat of criminal charges after restraints suffocated their patients.
  • Report physical encounters.

EMS professionals who find themselves in physical altercations with patients need to protect themselves against civil and even criminal liability. Reporting the event to supervisors and, if applicable, a union legal representative, is an essential step to take as soon as possible after the event. Gathering facts while memory is fresh is important. This is especially the case if the patient suffered serious injury or death. In many cases it’s a good idea to talk to an attorney who is outside the employer/union relationship.

GGRM can answer your questions

For over 45 years the attorneys at Greenman Goldberg Raby Martinez have represented clients in the Las Vegas first responder community. If you have been in a situation that required force against an unwilling patient and you would like to discuss your legal risks and options, we are here to answer your questions. Call us today for a free attorney consultation at 702-388-4476, or reach us through our contact page.

Overtime Pay Rules for Law Enforcement

Overtime Pay Rules for Law Enforcement
Law enforcement officers are often asked to work long hours, but getting paid for overtime can sometimes be more of a struggle than it should be. Federal law provides legal tools for officers who find themselves fighting to get the overtime pay they have earned.

The Fair Labor Standards Act

The federal Fair Labor Standards Act covers a range of pay issues across the country, including the federal minimum wage and overtime rules. It applies to most working people in the United States, including employees of state and local government agencies. It is enforced through the U.S. Department of Labor's Wage and Hour Division or through direct lawsuits filed by employees. In acknowledgement of the irregularity of law enforcement work, the FLSA has special rules governing how overtime is calculated in the profession. Section 207(k) of the statute provides a formula for determining when time-and-a-half overtime applies. Unlike other employers, which are tied to the standard work week, law enforcement agencies may use a work period that is anywhere from 7 to 28 consecutive days. An employer must pay overtime when an employee’s work exceeds 171 hours within the 28-day period. The rate is prorated if the employer’s work period is shorter than the maximum 28 days. Federal regulations include a detailed chart breaking down the maximum number of hours in work periods of different lengths. Note that under the FLSA it is lawful for an employer to offer officers an option to take additional leave in lieu of cash for overtime. The time off must accrue at the time-and-a-half rate. Although employers can cap the amount of FLSA time off an employee can accrue, it cannot be subject to a “use it or lose it” rule.

Las Vegas Metro’s overtime rules

The Las Vegas Metropolitan Police Department’s policy manual is a useful example of how an employer can structure overtime. Section 610 of the manual provides Metro’s overtime rules, which were negotiated with the officers’ union. A normal work week for Metro is 40 hours, with work days between 8 and 12 hours long. In an emergency an officer may be called upon to work outside of the normal shift, in which case the officer will be compensated for at least 4 hours of work, provided the 4-hour period doesn’t run into the normal shift. There are a number of other specific rules. For example:
  • Officers are also paid overtime whenever required to work during holidays.
  • Officers who are called back to duty with less than 12-hours’ notice are entitled to overtime.
  • Officers are entitled to overtime pay during unplanned emergencies.
  • Overtime pay earned by officers who are held over beyond their normal shifts is not subject to retirement system contributions.
  • Overtime pay can be earned by working special events if approved in advance.

GGRM is here to help Las Vegas law enforcement officers

Sorting through the rules that govern overtime pay can be complex. Hopefully none of our city’s police are working overtime without getting paid for it. If you are concerned that you may be owed overtime that isn’t being paid, the attorneys at Greenman Goldberg Raby Martinez may be able to help. We have proudly served the Las Vegas first responder community for over 45 years. For a free consultation reach out to us today at 702-388-4476 or contact us through our website.