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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.

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.

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.

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.

How Mandatory Arbitration Can Limit Nevada Employee Rights

How Mandatory Arbitration Can Limit Nevada Employee Rights
Employers are increasingly including mandatory-arbitration clauses in the agreements employees sign after being hired. The clauses are designed to prevent employees from filing lawsuits against their employers for just about any kind of employment-related issue, from unpaid overtime to unlawful discrimination and wrongful termination. Instead of going to court, employees are required to submit disputes to a private arbitrator. Because our legal system favors freedom of contract, an employee who is subject to a mandatory-arbitration clause may have no option but to comply. For employees the arbitration process can offer some benefits when compared to litigation, but it has a range of potential problems that make it a mixed blessing.

Arbitration has some advantages over ordinary litigation . . .

Arbitration can be thought of as a “light” form of litigation. Like litigation, lawyers usually represent both sides in the dispute, there are rules governing what can be used as evidence, and there are rules of procedure that in theory ensure that both sides receive a fair hearing. For employees, arbitration has two main benefits over litigation: it tends to be faster and cheaper. The backlog in our court system means a new case can take years to resolve, while an arbitration firm tends to not have the same bandwidth problem. And because the rules are simpler and the process less formal, attorneys’ fees and other costs tend to be lower.

. . . but many disadvantages.

For an employee the downsides of arbitration can be significant. Here are just a few of the issues:
  • No option to appeal. A typical arbitration clause will provide that the results of the arbitration are binding and can’t be appealed to the courts. An employee who isn’t satisfied with the outcome of binding arbitration may have no right to appeal the decision.
  • One reason employers favor private arbitration is the secrecy of the process. The results of private arbitration typically are confidential, and quite often the employee is bound by an obligation to keep the results secret as well. In cases involving unlawful discrimination or sexual harassment, one can see how a confidential process benefits the employer at the expense not only of the individual employee bringing the complaint, but potentially many other employees as well.
  • Unequal power. Litigation tends to balance the inherently unequal employer-employee relationship, by giving both sides equal rights before the law. Private arbitration doesn’t always meet the same standard. Some arbitrators may have an incentive to favor employers, because an employer will continue to use an arbitrator that it thinks will take a more favorable view of the employer’s side. This problem has been well documented.
Together these problems can frustrate an employee’s efforts to enforce important legal rights. Because arbitration can be binding and unappealable, it is especially important for employees to seek good legal advice.

GGRM is a Las Vegas law firm

The attorneys at the law firm of Greenman Goldberg Raby Martinez are proud to serve working people in the Las Vegas area. If you are in a dispute with your employer and have questions about how a mandatory-arbitration clause affects your rights, we would be happy to talk to you about your options. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.

How Nevada Protects Older Workers From Employment Discrimination

How Nevada Protects Older Workers From Employment Discrimination
As the American workforce ages, employment discrimination against older workers likely will become an increasingly important issue. The U.S. Equal Employment Opportunity Commission (EEOC) receives more than 20,000 complaints of age-based discrimination each year. Presumably this reflects only a small portion of wrongful discrimination cases, many of which probably go unreported. With rare exceptions, a Nevada employer cannot discriminate against job applicants and employees on the basis of age.

Nevada and federal law prohibits most types of age-based employment discrimination

The federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 621 et seq., protects workers over the age of 40. Under the ADEA, employers may not adopt policies that negatively affect applicants or employees age 40 or older unless the policy is based on a reasonable factor other than age (RFOA). In its rules the EEOC specifies that an employer is responsible for showing that its policies are objectively reasonable, designed to achieve a legitimate business purpose, and reasonably achieve that purpose. Whether a policy is based on a lawful RFOA is determined by considerations including how the factor relates to the employer’s business purpose, how accurately the employer has defined the factor, and how the employer handles employee assessments, especially if the assessments will focus on traits that are closely linked to age. 29 C.F.R. 1625.7 (2012). Nevada law protects workers from age discrimination in the same way as other protected categories, such as race, religion, and sex. NRS 613.330 prohibits employers from discriminating against applicants or employees on the basis of age unless age is “a bona fide occupational qualification reasonably necessary to the normal operation” of the employer’s business.

Can an employer ask about an applicant’s age?

Employers are not prohibited from collecting information that reveals age information about a job applicant or employee. An employer might be able to deduce an employee’s approximate age based on information like graduation dates, employment history, or other routine resume details. And the law does not prohibit an employer from asking for a date of birth. But an employer needs to have a business-related reason for asking for such information, and must not be asking for it solely to make an employment decision based upon it. Workers should note that employers are allowed to ask applicants and employees to waive their state and federal age discrimination rights. Per the Nevada Equal Rights Commission, such waivers must meet a strict set of criteria. These include that the employee is compensated for the waiver.

Consult with an attorney about age-based discrimination

If an employer has unlawfully discriminated against you or a loved one on the basis of age, it’s important to speak to an attorney right away. Don’t let your legal rights slip away. The attorneys at GGRM are happy to help workers in Las Vegas evaluate their legal options. To speak to an attorney, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

What Light Duty Accommodations Can Mean for Workers and Employers

What Light Duty Accommodations Can Mean for Workers and Employers
A Nevada employer cannot lawfully fire a worker who is recovering from an injury or illness suffered while on the job. But many employers have policies that require employees to accept light duty work as a condition of keeping their jobs while they are recovering. Because some workers’ compensation benefits can be tied to continuing employment, workers often feel forced to accept light duty. Workers recovering from injury need to understand how light duty works.

Employers adopt light duty policies to accommodate worker disabilities

Employers adopt light duty policies to avoid the legal risk of terminating an employee after the employee is injured or after a workers’ compensation claim is filed. If the employee’s injuries resulted in a temporary or permanent disability, the Americans with Disabilities Act (ADA) protects them from being fired solely on the basis of the disability. Instead, employers are required to provide reasonable accommodations for the disability. Nevada law also prohibits employers from firing employees solely because they have filed a workers’ compensation claim. Offering light duty is one way to comply with these rules.

Nevada’s light duty rules

Nevada distinguishes between two types of light duty work: temporary and permanent. Temporary light duty is offered to employees who are still recovering from their work-related injuries or illnesses and cannot resume their normal job while undergoing treatment. An employer’s policies determine the practical scope of light duty, but it must take into account the limitations placed on the employee by the treating physician. In many cases, a temporary light duty job gets created to fit the employee’s specific needs. An offer of light duty work must be in writing and describe the job in detail, including its wage, hours, and physical requirements. If the light duty work doesn’t match the written offer, an employee can demand changes. NAC 616C.583. Permanent light duty is another story. When a worker’s physician concludes that the worker will have permanent limitations as a result of workplace injuries, an employer is not required to modify the employee’s old job or offer a permanent position that accommodates for the worker’s new disabilities. Workers who lose their job as a result of permanent work restrictions, and whose employer elect not to provide light duty accommodations, are eligible for vocational retraining benefits.

Light duty and workers’ compensation benefits

All employers in Nevada are required to carry workers’ compensation insurance. Workers’ compensation benefits include payment of medical expenses, vocational rehabilitation, and lost wages. A worker can continue to receive these benefits after being terminated, but Nevada allows insurers to deny coverage to workers who are fired for misconduct. NRS 616C.323. If an employer has a policy requiring an injured worker to accept an offer of temporary light duty work during recovery, the employee normally must accept the position or risk being fired. Quite often, temporary light duty work is a big step down from a worker’s ordinary job, involving tasks that are menial or dull. But refusing to do light duty work can constitute “misconduct” and lead to lost workers’ compensation coverage.

We help Las Vegas workers protect their rights  

After being injured on the job it’s always a good idea to talk to an attorney who understands workers’ compensation. For over 45 years GGRM has worked hard to ensure that clients who have been injured on the job are not losing out on their legally protected benefits. For a free attorney consultation, call us today at 702-388-4476, or send us a request through our contact page.

Minimum Wage Requirements in Nevada

Minimum Wage Requirements in Nevada
Minimum wage laws protect workers from unfair treatment by employers and aim to preserve a basic standard of living for workers who are in entry level or low-skill jobs. But they are subject to various exceptions and exclusions that workers need to understand. As of today the minimum wage in Nevada is $8.25 per hour for employers who do not provide health insurance benefits. Workers who work more than 40 hours in a scheduled week of work, or who work more than 8 hours in a workday (unless they are on a four, 10-hour day schedule) are entitled to time-and-a-half overtime. NRS 608.018.

The relationship between federal and Nevada minimum wage

The federal Fair Labor Standards Act (FLSA) requires most U.S. employers to pay most full- and part-time employees at least $7.25 an hour, but allows state and local governments to adopt a higher minimum wage, just as Nevada has done. In the event of a conflict, the higher minimum wage applies. The FLSA provides exemptions from the standard minimum wage for certain workers or jobs, which in many cases can be paid a lower minimum wage. Here are a few examples:
  • Workers who earn at least $30 in tips per month and collect at least $5.12 in hourly tips can be paid as little as $2.13 per hour.
  • Workers under the age of 20 within the first 90 days of employment can be paid a minimum wage of $4.25 per hour.
  • Student workers (in high school or college) doing certain jobs, like retail or agriculture, can be paid as little as 85% of the prevailing minimum wage, provided the employer satisfies Department of Labor requirements.
  • The Department of Labor can exempt nonprofit and educational organizations from having to pay the full minimum wage.
Other types of worker are exempted entirely from the federal minimum wage and overtime laws. This includes white collar workers (executives, administrators, professionals). There are also numerous exemptions for agricultural laborers. Farms that use only a small amount of labor are exempt, as are certain specific types of agricultural employee (seasonal hand harvesters, for example).

Nevada’s minimum wage law

Like the FLSA, Nevada’s minimum wage law provides exceptions. NRS 608.250 allows the following workers to be paid less than the state minimum wage:
  • Casual babysitters.
  • Live-in domestic service employees.
  • Outside salespersons who are paid by commission.
  • Small-farm agricultural workers.
  • Taxicab and limousine drivers.
  • Persons with disabilities that limit their productive capacity. See NAC 608.200 et seq.
Independent contractors are also exempt from minimum wage rules. Employers will sometimes try to misclassify employees as independent contractors to avoid paying them minimum wage or providing other benefits to which employees are legally entitled.

Suing to recover back pay

Unfortunately, minimum wage workers are often victims of unscrupulous employers who try to get away with not paying minimum wage or complying with overtime laws. Complaints can be filed with the Nevada Labor Commissioner, which investigates wage violations and can enforce penalties against noncompliant employers. Although non-lawyers can file complaints, having the help of an attorney can significantly improve the chance of a complaint leading to a successful outcome. Greenman Goldberg Raby Martinez is proud of the work it does helping working people protect their rights. If you would like to speak to an attorney about your minimum wage questions, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Same-Sex Marriage and Nevada Employment Law

Same-Sex Marriage and Nevada Employment Law
Nevada has given legal recognition to same-sex domestic partnerships since 2009, and same-sex marriages since 2014. The state’s recognition of same-sex marriages followed the ruling of the Ninth Circuit Court of Appeals in a landmark case that declared Nevada’s state Constitutional ban on same-sex marriage violated the Equal Protection Clause of the Fourteenth Amendment. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012), reversed and remanded sub nom. Latta v. Otter, 771 F.3d 456 (9th Cir. 2014). Since July 1, 2017, the state’s marriage statute, NRS 122.001 et seq., has been gender-neutral, ensuring that same-sex marriages are given the same treatment as marriages between opposite-sex couples.

Employment discrimination is still a problem

Even though Nevada’s marriage laws explicitly authorize same-sex marriage, workplace discrimination on the basis of sexual orientation is still a problem. Nevada law gives people in same-sex marriages powerful legal tools for responding to an employer’s discriminatory behavior. Earlier this year, Senate Bill 188 added “gender identity or expression” and sexual orientation throughout the state’s anti-discrimination laws, including the employment discrimination law of NRS 613.330, giving them the same kinds of protections as religion, color, sex, race, disability, age, and national origin. Although an employer still can base employment decisions on protected features where it is “a bona fide occupational qualification reasonably necessary to the normal operation” of the employer’s business, NRS 613.350, jobs that are reasonably predicated upon an employee’s sexual orientation or gender identity are likely to be vanishingly rare.

Employers must apply the same standards to all married people

An employee’s marriage status is notably absent from the protections in NRS 613.330, but it seems unlikely that an employer could successfully escape liability for discrimination by arguing that its decision to fire an employee was based on the employee’s decision to marry. To work, an employer would need to have a policy against all of its employees getting married. If such a rule only applied to LGBT employees, it probably would be unlawful. And that is perhaps the most important legal protection that same-sex marriage now enjoys in the Nevada workplace. An employer’s policies and actions with respect to marriage cannot discriminate between different kinds of married couple on the basis of any protected feature. Same-sex couples enjoy the same right to work without discrimination as mixed-race couples, or couples from different religions.

An important distinction between same sex marriage and domestic partnerships

Nevada’s domestic partner law allows two people of any gender to enter into a civil union. Although domestic partners enjoy most of the legal benefits of marriage, the law specifically allows employers to not extend health care benefits to domestic partners of employees. NRS 122A.210. There is no equivalent law with respect to partners in a same-sex marriage. In fact, insurers are prohibited from discriminating against lawfully married same-sex couples, and must offer them the same coverage as are offered to opposite-sex couples.

We are ready to help Las Vegas employees protect their rights

At GGRM we believe that all Nevadans deserve equal treatment, and that workers who suffer from unlawful discrimination should be compensated for the hardships they endure. If you would like to speak to an attorney about how Nevada’s laws protect employees who are in same-sex marriages, call us today at 702-388-4476, or send us a request through our contact page.