The nuances of employment law can land small-business owners in hot water if they don’t understand all of the obligations that come with being an employer, Las Vegas area attorneys say.
Understanding how to navigate the Family and Medical Leave and Americans with Disabilities acts, Nevada’s overtime statutes, Nevada’s two-tier minimum wage law and good record keeping are topics some employment law attorneys agree can cause confusion.
And they’ve got six tips to help employers navigate away from potential legal entanglements.
▶ 1. Brett Sutton, a partner at Sutton Hague Law Corp. and a 25-year veteran in employment and labor law, said he has seen an increase in the volume of claims involving “regular rate of pay.” Sutton said that overtime is 1½ times greater than the regular rate, but employers often miss an important part of the definition of regular rate of pay: An employer who pays an employee a bonus or other compensation in excess of that employee’s normal hourly wage during a workweek must pay overtime based on the average of the larger sum, not the employee’s regular hourly rate.
“Many employers do not understand this and consequently underpay on the overtime rate and then find themselves facing claims and possible penalties for underpayment,” Sutton said.
▶ 2. Another issue involving Nevada’s overtime statutes is the daily overtime rule. The statute states that employees making less than 1½ times the minimum wage — $10.88 per hour for employees being offered benefits and $12.38 per hour for employees who are not — are entitled to overtime if they work more than eight hours in a day. Companies paying more than 1½ times the minimum wage are mandated to pay overtime when employees work more than 40 hours in a workweek.
Nevada law states that a workday is 24 hours long and starts at the beginning of an employee’s shift. Suzanne Martin, a shareholder with the Las Vegas office of Ogletree, Deakins, Nash, Smoak and Stewart, gave an example of how this system works using a work schedule that called for a shift that went from 2 p.m. to 11 p.m. on a Monday, including a one-hour break. The next day, Tuesday, the employee came in at 9 a.m. and left at 3 p.m. This would entitle the employee to five hours of overtime pay because his workday didn’t end from the previous day until 2 p.m.
“Smaller employers encounter issues with the daily overtime issue, and in particular, the 24-hour workday rule, more frequently,” Martin said.
▶ 3. There is an exemption to the daily overtime rule that allows for working four 10-hour days, but the possibility of having to pay overtime isn’t diminished. Martin said that “it has been the labor commissioner’s practice to interpret the daily overtime requirement for employees working a 4/10 to apply only if the employee works more than 10 hours a day, and of course, more than 40 hours in a week.”
This type of schedule should be in writing, and it has to stay consistent.
Nevada’s two-tier minimum wage can also confuse some Nevada employers. According to the statute, employers who offer a qualified health plan are allowed to pay a lower minimum wage of $7.25 an hour. If they don’t offer a health plan, the minimum is $8.25 an hour.
Some employers have opted to pay the higher of the two wages, Martin said, so they don’t have to assess whether an employee’s health plan qualifies or open up the possibility of making an error.
▶ 4. Another potential problem area for employers is discipline, including termination.
Small businesses should take the time to document employee conduct, said Laura Thalacker, an employment law partner at Hartwell Thalacker, Ltd. and a certified senior professional in human resources.
“When you have contemporaneous documentation showing the real reason why you fired somebody, it enhances the employer’s credibility,” Thalacker said.
Nevada is an at-will state, and employers don’t need a reason to terminate. But that doesn’t mean employers won’t be sued, Thalacker said.
Documenting can also keep employees abreast of what conduct is expected, and makes explaining conduct expectations easier for future managers, Thalacker said.
It’s important to document all offenses — even minor ones — Thalacker said.
“Even for one-time offenses, you would want to document so you have a record of what occurred in the event it happens again or there are other problems,” Thalacker said.
It’s best to use experienced professionals to document these incidents, Thalacker said.
“You want to make sure that the person handling the documentation maintains objectivity and records specific details — the what, where, when, why and how of situation,” Thalacker said.
If an organization didn’t document an incident immediately, there is no expiration date to do so. But Thalacker said you shouldn’t wait too long.
“Memories fade,” Thalacker said. “And delayed documentation may have a negative impact on the employer’s credibility.”
There are also offenses where employees can be fired on the first offense because of the very nature of the issue — such as stealing — Thalacker said.
▶ 5. Federal laws pertaining to the Family and Medical Leave Act can also cause headaches for area employers.
Thalacker said small employers should be cautious when defining an employee’s medical leave as “FMLA leave.” By doing so, smaller companies could bind themselves to a set of regulations, where they normally wouldn’t be.
Only employers with more than 50 employees within 75 miles are required to comply with the Family Leave Act.
The employee also has to have worked 1,250 hours in the 12 months before the leave and been employed with that employer for 12 months, although that time can be nonconsecutive. An employee can get up to 12 weeks of leave for a qualified event; military caregivers can be allotted up to 26 weeks.
▶ 6. The Americans with Disabilities Act can also be hard to navigate.
“A lot of human resource people, if they don’t consult somebody, that’s where they get into trouble,” Las Vegas employment attorney Michael Balaban said.
Employers must first assess whether someone qualifies for the job under the act.
The employee has to be able to do the job with or without reasonable accommodation from the employer, Balaban said. Only then is it time to discuss what accommodations are required.