NAC: CHAPTER 608 - COMPENSATION, WAGES AND HOURS

[Rev. 11/22/2013 9:50:08 AM--2013]

[NAC-608 Revised Date: 7-08]

CHAPTER 608 - COMPENSATION, WAGES AND HOURS

PAYMENT AND COLLECTION OF WAGES

608.050 Definitions.

608.055 “Commissioner” defined.

608.060 “Day” defined.

608.065 “Employee” defined.

608.070 “Employer” defined.

608.075 “Piece rate” defined.

608.080 “Salary” defined.

608.090 “Uniform” interpreted.

608.100 Minimum wage: Applicability; rates; annual adjustments.

608.102 Minimum wage: Qualification to pay lower rate to employee offered health insurance.

608.104 Minimum wage: Determination of whether employee share of premium of qualified health insurance exceeds 10 percent of gross taxable income.

608.106 Minimum wage: Declination by employee of coverage under health insurance plan.

608.108 Minimum wage: Requirements for payment at higher rate; modification of term of waiting period.

608.115 Payment for time worked.

608.120 Payment of commissions.

608.123 Compensation for overtime: Payment based upon requirements for minimum wage.

608.125 Compensation for overtime: Miscellaneous requirements.

608.130 Payment for travel and training.

608.135 Notice of regular paydays and place of payment; electronic payment.

608.140 Provision of records of wages to employee.

608.145 Periods for rest and meals.

608.150 Investigations to determine liability for violations.

608.155 Claims for wages unpaid when due.

608.160 Withholding of amounts from wages due.

EMPLOYMENT OF WORKERS WITH DISABILITIES AT SPECIAL MINIMUM WAGE

608.200 Definitions.

608.205 “Administrator” defined.

608.210 “Certificate” defined.

608.215 “Division” defined.

608.220 “Experienced nondisabled worker” defined.

608.230 “Institution” defined.

608.235 “Locality” defined.

608.240 “Nondisabled worker” defined.

608.245 “Patient worker” defined.

608.250 “Special minimum wage” defined.

608.255 “Wage and Hour Division” defined.

608.257 “Worker with a disability” defined.

608.260 “Persons with severe disabilities” interpreted.

608.265 Applicability of provisions to working patients and students.

608.270 Certificate required.

608.275 Application for certificate.

608.280 Criteria for issuance of certificate.

608.285 Notification of issuance or denial of certificate.

608.290 Terms of certificate; informing worker of terms.

608.295 Renewal of certificate.

608.300 Revocation of certificate.

608.305 Determination and adjustment of special minimum wage.

608.310 Determination of prevailing wage.

608.315 Recording information concerning determination of prevailing wage.

608.320 Determination of piece rate of pay.

608.325 Compensable time of worker.

608.330 Periodic evaluation of worker’s productivity.

608.335 Payment of worker at piece rate.

608.340 Cost of room, board and other services provided to working patient.

608.345 Administrative review of special minimum wage; reporting violations of law.

608.350 Reducing minimum hourly rate of pay.

608.355 Maintenance of records concerning worker.

608.360 Posting explanation of conditions for payment of special minimum wage.

608.365 Review of action of Division.

608.370 Investigation by Division or Administrator.

PAYMENT AND COLLECTION OF WAGES

NAC 608.050 Definitions. (NRS 607.160) As used in NAC 608.050 to 608.160, inclusive, unless the context otherwise requires, the words and terms defined in NAC 608.055 to 608.080, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004; A by R055-07, 10-31-2007)

NAC 608.055 “Commissioner” defined. (NRS 607.160) “Commissioner” means the Labor Commissioner or his authorized representative.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.060 “Day” defined. (NRS 607.160) “Day” means a calendar day, including any portion of a calendar day, unless otherwise specified by an applicable statute or regulation.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.065 “Employee” defined. (NRS 607.160) “Employee” has the meaning ascribed to it in NRS 608.010.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.070 “Employer” defined. (NRS 607.160) “Employer” has the meaning ascribed to it in NRS 608.011.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.075 “Piece rate” defined. (NRS 607.160) “Piece rate” means a wage rate based on a unit of production. The term does not include a wage rate based on a unit of time or a wage rate based on commission.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.080 “Salary” defined. (NRS 607.160) “Salary” means a wage rate based on a fixed dollar amount for a period of time other than an hour.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.090 “Uniform” interpreted. (NRS 607.160, 608.165) As used in NRS 608.165, the Commissioner interprets “uniform” to mean distinctive clothing which an employee of a business is required to wear and which serves as a clear means of identifying the employee with the business.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.100 Minimum wage: Applicability; rates; annual adjustments. (Nev. Const. Art. 15, § 16; NRS 607.160, 608.250)

1. Except as otherwise provided in subsections 2 and 3, the minimum wage for an employee in the State of Nevada is the same whether the employee is a full-time, permanent, part-time, probationary or temporary employee, and:

(a) If an employee is offered qualified health insurance, is $5.15 per hour; or

(b) If an employee is not offered qualified health insurance, is $6.15 per hour.

2. The rates set forth in subsection 1 may change based on the annual adjustments set forth in Section 16 of Article 15 of the Nevada Constitution.

3. The minimum wage provided in subsection 1 does not apply to:

(a) A person under 18 years of age;

(b) A person employed by a nonprofit organization for after-school or summer employment;

(c) A person employed as a trainee for a period not longer than 90 days, as described by the United States Department of Labor pursuant to section 6(g) of the Fair Labor Standards Act; or

(d) A person employed under a valid collective bargaining agreement in which wage, tip credit or other provisions set forth in Section 16 of Article 15 of the Nevada Constitution have been waived in clear and unambiguous terms.

4. As used in this section, “qualified health insurance” means health insurance coverage offered by an employer which meets the requirements of NAC 608.102.

(Added to NAC by Labor Comm’r by R055-07, eff. 10-31-2007)

NAC 608.102 Minimum wage: Qualification to pay lower rate to employee offered health insurance. (Nev. Const. Art. 15, § 16; NRS 607.160, 608.250) To qualify to pay an employee the minimum wage set forth in paragraph (a) of subsection 1 of NAC 608.100, an employer must meet each of the following requirements:

1. The employer must offer a health insurance plan which:

(a) Covers those categories of health care expenses that are generally deductible by an employee on his individual federal income tax return pursuant to 26 U.S.C. § 213 and any federal regulations relating thereto, if such expenses had been borne directly by the employee; or

(b) Provides health benefits pursuant to a Taft-Hartley trust which:

(1) Is formed pursuant to 29 U.S.C. § 186(c)(5); and

(2) Qualifies as an employee welfare benefit plan:

(I) Under the guidelines of the Internal Revenue Service; or

(II) Pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.

2. The health insurance plan must be made available to the employee and any dependents of the employee. The Labor Commissioner will consider such a health insurance plan to be available to the employee and any dependents of the employee when:

(a) An employer contracts for or otherwise maintains the health insurance plan for the class of employees of which the employee is a member, subject only to fulfillment of conditions required to complete the coverage which are applicable to all similarly situated employees within the same class; and

(b) The waiting period for the health insurance plan is not more than 6 months.

3. The share of the cost of the premium for the health insurance plan paid by the employee must not exceed 10 percent of the gross taxable income of the employee attributable to the employer under the Internal Revenue Code, as determined pursuant to the provisions of NAC 608.104.

(Added to NAC by Labor Comm’r by R055-07, eff. 10-31-2007)

NAC 608.104 Minimum wage: Determination of whether employee share of premium of qualified health insurance exceeds 10 percent of gross taxable income. (Nev. Const. Art. 15, § 16; NRS 607.160, 608.250)

1. To determine whether the share of the cost of the premium of the qualified health insurance paid by the employee does not exceed 10 percent of the gross taxable income of the employee attributable to the employer, an employer may:

(a) For an employee for whom the employer has issued a Form W-2 for the immediately preceding year, divide the gross taxable income of the employee paid by the employer into the projected share of the premiums to be paid by the employee for the health insurance plan for the current year;

(b) For an employee for whom the employer has not issued a Form W-2, but for whom the employer has payroll information for the four previous quarters, divide the combined total of gross taxable income normally calculated from the payroll information from the four previous quarters into the projected share of the premiums to be paid by the employee for qualified health insurance for the current year;

(1) Determine the combined total gross taxable income normally calculated from the total payroll information available for the employee and divide that number by the number of weeks the total payroll information represents;

(2) Multiply the amount determined pursuant to subparagraph (1) by 52; and

(3) Divide the amount calculated pursuant to subparagraph (2) into the projected share of the premiums to be paid by the employee for qualified health insurance for the current year; and

(d) For a new employee, promoted employee or an employee who turns 18 years of age during employment, use the payroll information for the first two normal payroll periods completed by the employee and calculate the gross taxable income using the formula set forth in paragraph (c).

2. As used in this section, “gross taxable income of the employee attributable to the employer” means the amount specified on the Form W-2 issued by the employer to the employee and includes, without limitation, tips, bonuses or other compensation as required for purposes of federal individual income tax.

(Added to NAC by Labor Comm’r by R055-07, eff. 10-31-2007)

NAC 608.106 Minimum wage: Declination by employee of coverage under health insurance plan. (Nev. Const. Art. 15, § 16; NRS 607.160, 608.250) If an employee declines coverage under a health insurance plan that meets the requirements of NAC 608.102 and which is offered by the employer, the employer must maintain documentation that the employee has declined coverage. Declining coverage may not be a term or condition of employment.

(Added to NAC by Labor Comm’r by R055-07, eff. 10-31-2007)

NAC 608.108 Minimum wage: Requirements for payment at higher rate; modification of term of waiting period. (Nev. Const. Art. 15, § 16; NRS 607.160, 608.250) If an employer does not offer a health insurance plan, or the health insurance plan is not available or is not provided within 6 months of employment, the employee must be paid at least the minimum wage set forth in paragraph (b) of subsection 1 of NAC 608.100 until such time as the employee becomes eligible for and is offered coverage under a health insurance plan that meets the requirements of NAC 608.102 or until such a health insurance plan becomes effective. The term of the waiting period may be modified in a bona fide collective bargaining agreement if the modification is explicitly set forth in such agreement in clear and unambiguous terms.

(Added to NAC by Labor Comm’r by R055-07, eff. 10-31-2007)

NAC 608.115 Payment for time worked. (NRS 607.160, 608.016, 608.250)

1. An employer shall pay an employee for all time worked by the employee at the direction of the employer, including time worked by the employee that is outside the scheduled hours of work of the employee.

2. If an employer pays an employee by salary, piece rate or any other wage rate except for a wage rate based on an hour of time, the employer shall pay an amount that is at least equal to the minimum wage when the amount paid to an employee in a pay period is divided by the number of hours worked by the employee during the pay period. This subsection does not apply to an employee who is exempt from the minimum wage requirement pursuant to NRS 608.250.

3. For the purpose of a claim for wages, holidays, vacation days, sick days and any other days that an employee did not actually work are not counted as time worked by the employee.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.120 Payment of commissions. (NRS 607.160, 608.250)

1. If an employer and an employee agree that the employee is to be paid by commission based upon a sale, the employer shall pay each commission to the employee when the commission becomes payable pursuant to the agreement.

2. If the agreement described in subsection 1 is not in writing, the terms and conditions of the agreement may be determined by the facts and circumstances related to the course of dealing between the employer and the employee.

3. All commissions that an employer pays to an employee during a pay period may be used to meet the minimum wage requirement described in subsection 3 of NAC 608.115.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.123 Compensation for overtime: Payment based upon requirements for minimum wage. (Nev. Const. Art. 15, § 16; NRS 607.160, 608.018, 608.250) For purposes of complying with the daily overtime provisions of subsection 1 of NRS 608.018, an employer shall pay overtime based upon the minimum wage which must be paid pursuant to the provisions of NAC 608.100 to 608.108, inclusive.

(Added to NAC by Labor Comm’r by R055-07, eff. 10-31-2007)

NAC 608.125 Compensation for overtime: Miscellaneous requirements. (NRS 607.160, 608.018)

1. An employer shall not substitute compensatory time in place of a wage payment for overtime that was worked by an employee.

2. If an employee is paid by salary, piece rate or any other wage rate except for a wage rate based on an hour of time, the rate of compensation for the purposes of paragraph (b) of subsection 2 of NRS 608.018 is determined by dividing the amount paid to an employee in a week by the number of hours worked by the employee during the week.

3. The Commissioner will refer to 29 C.F.R. §§ 541.1 and 541.2 to determine if an employee is employed in a bona fide executive or administrative capacity for the purposes of paragraph (d) of subsection 3 of NRS 608.018.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.130 Payment for travel and training. (NRS 607.160, 608.016, 608.250)

1. An employer shall pay an employee at a rate that is not less than minimum wage for any travel or training that is considered to be time worked by the employee pursuant to subsections 2 and 3.

2. Travel by an employee:

(a) Is considered to be time worked by the employee:

(1) If the travel is between different work sites during a workday; or

(2) If the employee is providing transportation for another employee on behalf of an employer who offers transportation for the convenience of his employees.

(b) Is not considered to be time worked by the employee if the travel is between the home of the employee and the place of work of the employee regardless of whether the employee works at a fixed location or at different places of work.

3. The training received by an employee:

(a) Is considered to be time worked by the employee if the training is required by the employer.

(b) Is not considered to be time worked by the employee if the training is required by an agency or entity other than the employer without regard to whether the training enables the employee to maintain eligibility for employment in a particular capacity or at a particular level.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.135 Notice of regular paydays and place of payment; electronic payment. (NRS 607.160, 608.080, 608.120)

1. In addition to the information required pursuant to NRS 608.080, the notice described in NRS 608.080 may include:

(a) Alternative paydays for use if a regular payday occurs on a nonbusiness day, including a Saturday, Sunday or holiday;

(b) Acceptable alternatives to the method of payment if an employee is not available for payment;

(d) Any other provision that the employer deems to be relevant if the provision does not violate any law or regulation of this State.

2. An employer may use an electronic payment system, including, but not limited to, a direct deposit, debit card or similar payment system, as an alternative location of payment if:

(a) The employee can obtain immediate payment in full;

(b) The employee receives at least one free transaction per pay period and any fees or other charges are prominently disclosed to and subject to the written consent of the employee;

(d) There are no other requirements or restrictions that a reasonable person would find to be an unreasonable burden or inconvenience; and

(e) The use of an electronic payment system is optional at the election of the employee.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.140 Provision of records of wages to employee. (NRS 607.160, 608.115) Within 10 days after a request by an employee, an employer shall provide the records of wages required to be kept by the employer pursuant to NRS 608.115 to the employee, including, but not limited to, an employee that is paid by salary, piece rate or any other wage rate.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.145 Periods for rest and meals. (NRS 607.160, 608.019)

1. Unless an employee is exempt pursuant to NRS 608.019, an employee that works at least 3 1/2 continuous hours is permitted:

(a) One 10-minute rest period if the employee works at least 3 1/2 continuous hours and less than 7 continuous hours;

(b) Two 10-minute rest periods if the employee works at least 7 continuous hours and less than 11 continuous hours;

(c) Three 10-minute rest periods if the employee works at least 11 continuous hours and less than 15 continuous hours; or

(d) Four 10-minute rest periods if the employee works at least 15 continuous hours and less than 19 continuous hours.

2. An unpaid lunch break is not considered when determining the number of hours worked by an employee for the purposes of subsection 1.

3. An employee may voluntarily agree to forego any rest period or meal period. The employer has the burden to prove the existence of any such agreement.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.150 Investigations to determine liability for violations. (NRS 607.160)

1. In determining the person to be held liable for a violation of this chapter or chapter 608 of NRS, the Commissioner may investigate the conduct of the business enterprise and the extent of custody or control exercised by a person over the place of employment or any employee.

2. The investigation of the conduct of the business enterprise may include, but is not limited to:

(a) Whether the person had the power to hire or fire employees;

(b) Whether the person supervised or had control over the schedule of work of employees or the conditions of employment of employees;

(d) Whether the person maintained the records of employment; and

(e) If more than a single business is involved in the business enterprise, whether the person had control of the businesses or operated the businesses for a common purpose.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.155 Claims for wages unpaid when due. (NRS 607.160)

1. Before an employee may file a claim for wages unpaid when due, the employee shall make a good faith attempt to collect any wages due the employee from an employer at the normal place and in the normal method that payment is made to employees of the employer.

2. An independent contractor may not file a claim for wages unpaid when due.

3. In a claim for wages unpaid when due, the following presumptions will apply, if applicable, unless the Commissioner receives evidence that he deems to be sufficient to rebut the presumption:

(a) An employee who has been placed on an indefinite suspension by an employer will be presumed to have been discharged by the employer;

(b) An employee who has not been paid by an employer will be presumed to have been discharged by the employer; and

4. As used in this section, “independent contractor” means a self-employed person who agrees with a client to do work for the client, for a certain fee, according to the means or methods of the self-employed person and not subject to the supervision or control of the client except as to the result of the work.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

NAC 608.160 Withholding of amounts from wages due. (NRS 607.160, 608.110)

1. Without the written authorization of an employee, an employer may withhold from the wages due the employee:

(a) Any amount required by law; and

(b) Any employee contribution to a benefit program, such as health insurance or a pension plan, as permitted pursuant to NRS 608.110.

2. Except as otherwise provided in subsection 1, an employer may not deduct any amount from the wages due an employee unless:

(a) The employer has a reasonable basis to believe that the employee is responsible for the amount being deducted by the employer;

(b) The deduction is for a specific purpose, pay period and amount; and

3. An employer may not use a blanket authorization that was made in advance by the employee to withhold any amount from the wages due the employee.

(Added to NAC by Labor Comm’r by R115-04, eff. 8-25-2004)

EMPLOYMENT OF WORKERS WITH DISABILITIES AT SPECIAL MINIMUM WAGE

NAC 608.200 Definitions. (NRS 232.320, 608.250) As used in NAC 608.200 to 608.370, inclusive, unless the context otherwise requires, the words and terms defined in NAC 608.205 to 608.257, inclusive, have the meanings ascribed to them in those sections.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.205 “Administrator” defined. (NRS 232.320, 608.250) “Administrator” means the Administrator of the Division or his designee.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.210 “Certificate” defined. (NRS 232.320, 608.250) “Certificate” means the certificate required pursuant to paragraph (f) of subsection 2 of NRS 608.250 for the employment of a worker with a disability at a special minimum wage.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.215 “Division” defined. (NRS 232.320, 608.250) “Division” means the Rehabilitation Division of the Department of Employment, Training and Rehabilitation.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.220 “Experienced nondisabled worker” defined. (NRS 232.320, 608.250) “Experienced nondisabled worker” means a nondisabled worker who is proficient in the performance of his job and is not receiving an entry level wage.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.230 “Institution” defined. (NRS 232.320, 608.250) “Institution” means any public, private, nonprofit or profit facility which derives more than 50 percent of its income by providing residential care for the sick or elderly or persons with mental illness or disabilities. The term includes any nursing home, facility for intermediate care, rest home, convalescent home, home for the elderly and infirm, halfway house, residential center for drug addicts or alcoholics, or any other similar facility, whether licensed or not.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.235 “Locality” defined. (NRS 232.320, 608.250) “Locality” means the geographic area from which the labor force of the community is drawn.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.240 “Nondisabled worker” defined. (NRS 232.320, 607.160, 608.250) “Nondisabled worker” means a person whose productive capacity for the work to be performed is not impaired by any physical or mental disability or, if impaired, is not impaired to the extent that he is unable to earn at least the minimum wage prescribed for him by NAC 608.100.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89; A by Labor Comm’r by R055-07, 10-31-2007)

NAC 608.245 “Patient worker” defined. (NRS 232.320, 608.250) “Patient worker” means a worker with a disability who is employed by an institution at which he receives treatment or care, whether or not he is a resident of the institution.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.250 “Special minimum wage” defined. (NRS 232.320, 607.160, 608.250) “Special minimum wage” means the wage paid to a worker with a disability, pursuant to a certificate issued by the Division, which is less than the minimum wage otherwise prescribed for that worker by NAC 608.100.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89; A by Labor Comm’r by R055-07, 10-31-2007)

NAC 608.255 “Wage and Hour Division” defined. (NRS 232.320, 608.250) “Wage and Hour Division” means the Wage and Hour Division of the United States Department of Labor.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.257 “Worker with a disability” defined. (NRS 232.320, 607.160, 608.250) “Worker with a disability” means a person whose productive capacity for the work to be performed is impaired by a physical or mental disability to the extent that he is unable to earn at least the minimum wage prescribed for him by NAC 608.100.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89; A by Labor Comm’r by R055-07, 10-31-2007)—(Substituted in revision for NAC 608.225)

NAC 608.260 “Persons with severe disabilities” interpreted. (NRS 232.320, 608.250) For the purposes of paragraph (f) of subsection 2 of NRS 608.250, “persons with severe disabilities” means a worker with a disability.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.265 Applicability of provisions to working patients and students. (NRS 232.320, 608.250)

1. Except as otherwise provided in subsection 2, a patient worker or a student worker with a disability is subject to the provisions of NAC 608.200 to 608.370, inclusive, if the work he performs is of any consequential economic benefit to the institution employing him.

2. A patient worker or a student worker with a disability is not subject to the provisions of NAC 608.200 to 608.370, inclusive, if:

(a) He performs only personal housekeeping chores, such as maintaining his own quarters, and receives not more than a token payment for his services; or

(b) He is voluntarily engaged in such activities as making craft products, if:

(1) The products he makes become his property; or

(2) The money obtained from the sale of the products is divided among the workers or is spent to purchase materials used to make the products.

3. As used in this section:

(a) “Student worker with a disability” means a worker with a disability who is a student at an educational institution and is employed as part of an academic curriculum or individual education plan.

(b) “Work of consequential economic benefit” means any work of a kind normally performed by a nondisabled worker.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.270 Certificate required. (NRS 232.320, 608.250)

1. Except as otherwise provided in NAC 608.265, a worker with a disability may not be employed at a special minimum wage except pursuant to a certificate issued by:

(a) The Division, pursuant to NAC 608.200 to 608.370, inclusive; or

(b) The Wage and Hour Division.

2. A person who is not a worker with a disability may not be employed under a certificate.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.275 Application for certificate. (NRS 232.320, 608.250)

1. Except as otherwise provided in subsection 2, an application for a certificate must be filed by the employer on a form prescribed by the Division. The employer shall provide an answer to each question contained in the application. The application must be signed by the employer or his designee.

2. An employer who is engaged in interstate commerce, or whose annual gross volume of sales or business is at least $362,500, shall file his application for a certificate with the Wage and Hour Division. In any other case, the employer shall file his application with the Administrator.

3. An employer who applies to the Administrator for a certificate must provide the following written assurances concerning the employment of workers with a disability:

(a) In the case of a worker who is paid an hourly rate, the special minimum wage will be reviewed by the employer and adjusted as provided in NAC 608.330; and

(b) In the case of any other worker with a disability, the special minimum wage will be adjusted by the employer at least once each year to reflect changes in the prevailing wages paid to experienced nondisabled workers employed in the locality for essentially the same kind of work.

4. The Administrator will recognize a certificate issued by the Wage and Hour Division as meeting the requirements of NAC 608.200 to 608.370, inclusive, and will not require that a duplicate or additional certificate be obtained from the Division.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.280 Criteria for issuance of certificate. (NRS 232.320, 608.250) The Division will issue a certificate only if necessary to prevent the curtailment of opportunities for employment of the worker with a disability who is affected. To determine whether a certificate will be issued, the Division will consider the following criteria:

1. The nature and extent of the disabilities of the worker;

2. The prevailing wages of experienced nondisabled workers who are employed in the locality and engaged in work comparable to that to be performed at the special minimum wage;

3. The comparative productivity of the worker with a disability and experienced nondisabled workers employed in the locality in comparable work; and

4. The wage rate to be paid to the worker with a disability for work comparable to that performed by experienced nondisabled workers.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.285 Notification of issuance or denial of certificate. (NRS 232.320, 608.250) If a certificate is issued, the Administrator will send a copy to the employer. If issuance of a certificate is denied, the Administrator will notify the employer in writing and inform him of the reasons for the denial and his right to petition for review under NAC 608.365.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.290 Terms of certificate; informing worker of terms. (NRS 232.320, 608.250)

1. A certificate:

(a) Will specify the terms and conditions under which it is granted.

(b) May apply to all workers with a disability employed by an employer.

(c) Is effective for the period designated by the Administrator. A worker with a disability may be paid a special minimum wage only while the certificate is effective.

2. Each worker with a disability and, where appropriate, his parent or guardian must be informed by the employer, orally and in writing, of the terms of the certificate under which the worker is employed. Each time a paycheck is issued to a worker with a disability, the employer shall provide the worker with a brief written statement of the terms of the certificate under which the worker is employed.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.295 Renewal of certificate. (NRS 232.320, 608.250)

1. An application may be filed for the renewal of any certificate. If an application for renewal is filed in a proper and timely manner, the existing certificate remains in effect until the application for renewal has been granted or denied.

2. A worker with a disability may continue to be paid a special minimum wage after notice that an application for renewal has been denied if a petition for review of the denial is filed in accordance with NAC 608.365. If the denial is affirmed on review, the employer shall reimburse any worker paid a special minimum wage in an amount equal to the difference between the applicable minimum wage and the lower wage paid to that worker, retroactive to the expiration date of the certificate.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.300 Revocation of certificate. (NRS 232.320, 608.250)

1. A certificate may be revoked at any time if, as of:

(a) The date of issuance, the Division determines that any misrepresentation or false statement has been made in obtaining the certificate or in permitting a worker with a disability to be employed thereunder;

(b) The date of violation, the Division determines that any of the provisions of NAC 608.200 to 608.370, inclusive, or the terms of the certificate have been violated; or

(c) The date of notice of the revocation, the Division determines that the certificate is no longer necessary in order to prevent the curtailment of opportunities for employment.

2. If a petition for review is filed under NAC 608.365, the effective date of the revocation must be postponed until action is taken on the petition. If the revocation is affirmed on review, the employer shall reimburse any worker with a disability paid a special minimum wage in an amount equal to the difference between the applicable minimum wage and the lower wage paid that worker, retroactive to the effective date of the revocation.

3. Except in cases of willfulness or those in which the public interest requires otherwise, before any certificate is revoked, facts or conduct which may warrant such action must be called to the attention of the employer in writing and the employer must be afforded an opportunity to demonstrate or achieve compliance with all legal requirements.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.305 Determination and adjustment of special minimum wage. (NRS 232.320, 608.250)

1. A special minimum wage paid to a worker with a disability must be based on the productivity of that worker in proportion to the prevailing wage and productivity of an experienced nondisabled worker performing essentially the same kind and quality of work in the locality.

2. The special minimum wage of any worker with a disability must be adjusted by the employer at least once each year, to reflect changes in the prevailing wage paid to experienced nondisabled workers employed in the locality for essentially the same kind of work.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.310 Determination of prevailing wage. (NRS 232.320, 608.250) For the purposes of NAC 608.200 to 608.370, inclusive:

1. The prevailing wage:

(a) May not be less than the minimum wage specified in subsection 1 of NRS 608.250; and

(b) Must be based upon work using similar methods and equipment. If no such work can be found in the locality or in a comparable community, appropriate alternative techniques for calculating the prevailing wage must be used.

2. An employer whose workforce consists primarily of:

(a) Nondisabled workers performing the same work as a worker with a disability employed by him under a certificate may use as the prevailing wage the wage paid to his experienced nondisabled employees.

(b) Workers with a disability shall determine the prevailing wage by ascertaining the wages paid to experienced nondisabled workers in the locality for essentially the same kind of work. For the purposes of this paragraph:

(1) The employer shall use a representative sample of employers who are a similar size or larger and are engaged in a business similar to his own.

(2) If the same kind of work cannot be found in the locality, the employer may refer to the closest comparable community outside the locality where such work can be found.

(3) If information concerning wages is not otherwise available, sources such as the Research Section of the Employment Security Division of the Department of Employment, Training and Rehabilitation, private employment services and data from the Bureau of Labor Statistics may be used.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.315 Recording information concerning determination of prevailing wage. (NRS 232.320, 608.250) An employer who determines the prevailing wage as provided in paragraph (b) of subsection 2 of NAC 608.310 shall record the following information concerning his determination:

1. The date of each contact with a firm or other source of information;

2. The name, address and telephone number of each firm or other source of information;

3. The name and title of the person contacted within each such firm or source of information;

4. A description of the information provided relating to the wage;

5. A brief description of the work for which the wage information is provided;

6. The size of the firm in terms of employees; and

7. The basis for the conclusion that the wage represents that paid to experienced nondisabled workers.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.320 Determination of piece rate of pay. (NRS 232.320, 608.250)

1. If a piece rate is established for a worker with a disability employed under a certificate:

(a) The employer must use one or more methods of measuring industrial work, such as a stopwatch time study, predetermined time system or standard data, to establish a standard production rate. The use of such a method is subject to the following requirements:

(1) The method used must be verifiable through the use of established techniques of measuring industrial work.

(2) If a stopwatch time study is made, it must:

(I) Be made with three or more persons whose productivity represents normal or near-normal performance; or

(II) Include an adjustment of performance. Any such adjustment must be made by a person knowledgeable in this area, as evidenced by his successful completion of training in the field.

(3) Any person tested must be:

(I) Given time to practice the work to be performed in order to allow him to overcome the initial learning curve; and

(II) Trained to use the method of work and tools to be used by the worker with a disability.

(4) Appropriate time must be allowed for personal time, fatigue and unavoidable delay. An allowance of not less than 10 minutes per hour must be used in conducting any time study.

(5) The method must use the same method of work that will be used by the worker with a disability or, if more than one such worker is to be employed, by the majority of such workers. If any modification is made to the method of work to accommodate the special needs of the worker with a disability, no additional time study is required if the modification enables the worker to perform the work or increase productivity.

(b) The piece rate must be calculated by dividing the prevailing wage used or determined as provided in NAC 608.310 by the standard production rate established as provided in paragraph (a).

(c) The piece rate must not be less than the prevailing piece rate paid an experienced nondisabled worker doing the same or similar work in the locality.

2. As used in this section, “standard production rate” means the number of units an experienced nondisabled worker is expected to produce per hour of work.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.325 Compensable time of worker. (NRS 232.320, 608.250)

1. A worker with a disability employed at a special minimum wage must be compensated for all time during which he is actually performing productive work or is required by the employer to remain available for the next assignment.

2. A worker with a disability who is provided therapy or the opportunity to participate in an alternate program or activity on the premises of the employer is not engaged in a compensable activity if:

(a) He is completely relieved from duty; and

(b) The therapy, program or activity does not involve work and is not directly related to the worker’s job.

3. The burden of establishing that the time of a worker is not compensable rests with the employer, and if the question is disputed, noncompensable time must be clearly distinguishable from compensable time.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.330 Periodic evaluation of worker’s productivity. (NRS 232.320, 608.250) If a worker with a disability is employed under a certificate at an hourly rate:

1. An evaluation of his productivity must be made within 30 days after his employment begins to determine the appropriate rate of pay. The results of the evaluation must be recorded and the wages of the worker adjusted accordingly not later than the first complete pay period following the evaluation.

2. Upon the completion of not more than 6 months of employment by the worker, the employer must conduct a review of the quantity and quality of work of the worker as compared to that of nondisabled workers engaged in similar work or work requiring similar skills. The results of the review must be recorded.

3. The productivity of the worker must be reviewed and the findings recorded during the 6 months immediately following the initial review and at least every 6 months thereafter. The wages of the worker must be adjusted accordingly not later than the first complete pay period following each review.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.335 Payment of worker at piece rate. (NRS 232.320, 608.250) Any worker with a disability employed at a piece rate must be paid his full earnings. An employer may pool the earnings of two or more workers with a disability if a piece rate cannot be established for each worker. In such a case, the employer shall, to the extent practicable, objectively divide the earnings among the workers according to the productivity level of each worker.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.340 Cost of room, board and other services provided to working patient. (NRS 232.320, 608.250)

1. Except as otherwise provided in subsection 2, no deduction may be made from the special minimum wage of a patient worker to cover the cost of room, board or other services provided by the institution where he is employed. The patient worker must receive his wages free and clear, except for amounts deducted for taxes, any voluntary assignment of wages or any deductions ordered by a court of competent jurisdiction.

2. An institution may assess and collect charges for room, board and other services actually provided to a patient worker to the extent permitted by applicable law and on the same basis as it assesses and collects such charges from nonworking patients.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.345 Administrative review of special minimum wage; reporting violations of law. (NRS 232.320, 608.250)

1. A worker with a disability receiving a special minimum wage, or his parent or guardian, may petition the Administrator to obtain a review of the special minimum wage. No particular form of petition is required, except that a petition must be signed by the worker, or his parent or guardian, and contain the name and address of the worker and his employer. The petition must be delivered or mailed to the Administrator at 505 East King Street, Room 502, Carson City, Nevada 89710.

2. The Administrator will review the petition within 10 working days after he receives it and will contact or visit the employer of the worker to inform the employer that the petition has been filed.

3. The Administrator may require the employer to present documents and records and may otherwise investigate the circumstances pertaining to the petition. The Administrator may also require additional information from the worker or any representative of the employee.

4. Within 60 days after he receives the petition, the Administrator will make a determination in the matter and will give the worker and the employer written notice of his findings. If the Administrator finds that any provision of NAC 608.200 to 608.370, inclusive, or any condition of the certificate has been violated, the Administrator may require corrective action or revoke the certificate. The decision of the Administrator is final for the purposes of judicial review, but does not limit the right of a worker with a disability to pursue any other administrative remedy available under applicable law.

5. If the Administrator finds an actual or potential violation by an employer of subsection 1 of NRS 608.250, or of section 14(c) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 214(c), or any regulation adopted thereunder, the Administrator may provide information in his possession to the Labor Commissioner or the Wage and Hour Division and request an investigation of the matter.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.350 Reducing minimum hourly rate of pay. (NRS 232.320, 608.250)

1. No employer may reduce the minimum hourly wage rate guaranteed by a certificate without the prior consent of the Administrator.

2. To obtain the consent required by subsection 1, the employer must submit to the Administrator information which is relevant to the criteria set forth in subsection 3. The burden of establishing the necessity of the reduction is on the employer.

3. In reviewing a request to reduce the wage rate of a worker with a disability, the Administrator will consider documented evidence of any change in:

(a) The disabling condition of the worker which has a substantial adverse impact on his productive capacity;

(b) The kind of work being performed in the facility which affects the productivity of the worker or results in the application of a lower prevailing wage; and

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.355 Maintenance of records concerning worker. (NRS 232.320, 608.250) Each employer of a worker with a disability employed under a certificate shall, for each such worker, maintain and have available for inspection records indicating:

1. Verification of the disability of the worker and, in cases where the disability cannot be readily observed, appropriate medical or psychiatric reports or results of psychological tests;

2. Evidence of the productivity of the worker, obtained as provided in NAC 608.330;

3. The prevailing wage paid nondisabled workers who are employed in industry in the locality for essentially the same kind of work using similar methods and equipment; and

4. The production standards and supporting documentation for nondisabled workers for the job being performed by the worker with a disability.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.360 Posting explanation of conditions for payment of special minimum wage. (NRS 232.320, 608.250) Each employer of a worker with a disability employed under a certificate shall at all times display a poster explaining, in general terms, the conditions under which a special minimum wage must be paid. The poster must be displayed in a conspicuous place on the premises of the employer where it may be readily observed by the worker, his parent or guardian, and other employees.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.365 Review of action of Division. (NRS 232.320, 608.250) Any person aggrieved by any action of the Division taken pursuant to NAC 608.200 to 608.370, inclusive, may, within 60 days or such additional time as the Administrator allows, file with the Administrator a petition for review. Review, if granted, will be made by the Administrator. Other interested persons, to the extent the Administrator deems appropriate, may be afforded an opportunity to present data and views.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)

NAC 608.370 Investigation by Division or Administrator. (NRS 232.320, 608.250) The Division or the Administrator may conduct an investigation, which may include a hearing, before taking any action pursuant to NAC 608.200 to 608.370, inclusive. To the extent deemed appropriate, the Division or the Administrator may provide an opportunity to other interested persons to present data and views.

(Added to NAC by Dep’t of Human Resources, eff. 2-14-89)