AB143_R2

Assembly Bill No. 143–Committee on Commerce and Labor

CHAPTER..........

AN ACT relating to labor; revising various provisions relating to the enforcement of the labor laws by the Labor Commissioner; authorizing the Labor Commissioner to impose administrative penalties for certain violations of the labor laws and regulations; requiring the Labor Commissioner to follow certain procedures before enforcing administrative penalties; revising provisions relating to the issuance of subpoenas and the settlement of certain matters; prohibiting employers from changing regular paydays or the place of payment without providing advance written notice to employees; prohibiting employers from paying employees a lower wage, salary or compensation than the amount earned by the employees when the work was performed; prohibiting employers from decreasing the wage, salary or compensation of employees without providing advance written notice to the employees under certain circumstances; clarifying certain provisions of the labor laws; providing penalties; and providing other matters properly relating thereto.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. NRS 607.140 is hereby amended to read as follows:

607.140 1. The Labor Commissioner shall prepare forms and blanks for the purpose of gathering the information and statistics required by this chapter, and may require any person[, firm or corporation] to give the information and statistical detail designated in those forms.

2. Any person[, firm or corporation] who refuses to furnish such detail and statistics in the form required by the Labor Commissioner is guilty of a misdemeanor and shall be [fined] punished by a fine of not more than $500.

3. In addition to any other remedy or penalty, the Labor Commissioner may impose against the person an administrative penalty of not more than $500 for each such violation.

Sec. 2. NRS 607.150 is hereby amended to read as follows:

607.150 1. To carry out the provisions of [subsection 1 of] NRS 607.160, the Labor Commissioner or a person designated by the Labor Commissioner may enter any store, foundry, mill, office, workshop, mine or other public or private works or place of employment at any reasonable time to gather facts and statistics and make a record thereof.

2. Any [owner, corporation, occupant or officer] person who refuses such entry to the Labor Commissioner[, his officers or

agents] or a person designated by the Labor Commissioner is guilty of a misdemeanor.

3. In addition to any other remedy or penalty, the Labor Commissioner may impose against the person an administrative penalty of not more than $500 for each such violation.

Sec. 3. NRS 607.160 is hereby amended to read as follows:

607.160 1. The Labor Commissioner:

(a) Shall enforce all labor laws of the State of Nevada the enforcement of which is not specifically and exclusively vested in any other officer, board or commission; and

(b) May adopt regulations to carry out the provisions of paragraph (a).

2. [Whenever] If the Labor Commissioner has reason to believe that a person is violating or has violated a labor law or regulation, the Labor Commissioner may take any appropriate action against the person to enforce the labor law or regulation whether or not a claim or complaint has been made to the Labor Commissioner concerning the violation.

3. Before the Labor Commissioner may enforce an administrative penalty against a person who violates a labor law or regulation, the Labor Commissioner must provide the person with notice and an opportunity for a hearing as set forth in
NRS 607.207.

4. In determining the amount of any administrative penalty to be imposed against a person who violates a labor law or regulation, the Labor Commissioner shall consider the person’s previous record of compliance with the labor laws and regulations and the severity of the violation.

5. All money collected by the Labor Commissioner as an administrative penalty must be deposited in the State General Fund.

6. The actions and remedies authorized by the labor laws are cumulative. If a person violates a labor law or regulation, the Labor Commissioner may seek a civil remedy, impose an administrative penalty or take other administrative action against the person whether or not the person is prosecuted, convicted or punished for the violation in a criminal proceeding. The imposition of a civil remedy, an administrative penalty or other administrative action against the person does not operate as a defense in any criminal proceeding brought against the person.

7. If, after due inquiry , the Labor Commissioner believes that a person who is financially unable to employ counsel has a valid and enforceable claim for wages, commissions or other demands, [he] the Labor Commissioner may present the facts to the Attorney General . [showing:

(a) The names of the claimant and his alleged debtor.

(b) A description and the location of the property on which the labor was performed, if the claim is for wages, or which is the office or place of business of the debtor if the claim is for a commission, and the right, title and interest of the debtor therein.

(d) The time the claimant began and the time he ceased the labor.

(e) The number of days’ labor performed by him during the employment and the rate of wages or commission arrangement and terms of the employment.

(f) The date or dates and the amount, if any, paid on the claim.

(g) The balance due, owing and unpaid on the claim.

(h) The date on which a demand for payment was made upon the debtor or his agent or representative, and the response, if any, to that demand.

(i) The names of the witnesses upon whom the claimant expects to rely to provide facts and to what facts each of the witnesses is expected to testify.

3.] The Attorney General shall prosecute the claim if [he] the Attorney General determines that the claim is valid and enforceable.

Sec. 4. NRS 607.170 is hereby amended to read as follows:

607.170 1. The Labor Commissioner may prosecute a claim for wages and commissions or commence any other action to collect wages, commissions and other demands of any person who is financially unable to employ counsel in a case in which, in the judgment of the Labor Commissioner, the claim for wages or commissions or other action is valid and enforceable in the courts.

2. In all matters relating to wages or commissions , [and before taking any assignment,]the Labor Commissioner may, in accordance with the provisions of NRS 607.210, subpoena [to appear before him, at a suitable place in the county of the claimant, his employer and all other persons] any person whose appearance is required to adjust and settle claims or other actions for wages or commissions before bringing suit [therefor,] in those matters, and the Labor Commissioner may effect reasonable compromises of those [claims.] matters.

3. The Labor Commissioner or his Deputy may maintain a commercial account with any bank or credit union within this state for the deposit of money collected for claims for wages or commissions. The money must be promptly paid to the person entitled thereto. At the end of each calendar year, any unclaimed money in the commercial account which has been a part of the account for 1 year or more is presumed abandoned under
NRS 120A.220.

Sec. 5. NRS 607.205 is hereby amended to read as follows:

607.205 In aid of his enforcement responsibilities under the labor laws of the State of Nevada, [including, but not limited to, the provisions of NRS 338.030, 412.1393, 412.1395, 607.160, 607.170, 608.270 and chapter 611 of NRS,] the Labor Commissioner or a person designated by him may conduct hearings and issue decisions thereon in the manner set forth in NRS 607.207.

Sec. 6. NRS 608.080 is hereby amended to read as follows:

608.080 1. Every employer shall establish and maintain regular paydays as provided in this chapter and shall post and maintain posted notices, printed in plain type or written in plain script, in at least two conspicuous places where such notices can be seen by the employees, setting forth the regular paydays as prescribed in this chapter and the place of payment, which [shall] must be within the justice’s court precinct in which such services were performed.

2. After an employer establishes regular paydays and the place of payment, the employer shall not change a regular payday or the place of payment unless, not fewer than 7 days before the change is made, the employer provides the employees affected by the change with written notice in a manner that is calculated to provide actual notice of the change to each such employee.

3. If an employee [shall be] is absent at the time and place of the payment of [such] wages or compensation, due and payable as prescribed in this chapter, provided he does not secrete or absent himself to avoid such payment, [he shall] the employee must be paid the same within 5 days after making written demand therefor.

Sec. 7. NRS 608.100 is hereby amended to read as follows:

608.100 1. It [shall be] is unlawful for any employer [of labor in this state to pay] to:

(a) Pay a lower wage, salary or compensation to [his] an employee than [that] the amount agreed upon through a collective bargaining agreement, if any[, or to pay] ;

(b) Pay a lower wage, salary or compensation to an employee than the amount that the employer is required to pay to [his] the employee by virtue of any [existing statute of this state] statute or regulation or by contract between the employer and the employee[.] ; or

(c) Pay a lower wage, salary or compensation to an employee than the amount earned by the employee when the work was performed.

2. It [shall be] is unlawful for any employer [of labor in this state] to require [his] an employee to rebate, refund or return any part of the wage, salary or compensation [theretofore] earned by and paid to [such] the employee.

3. [Any person violating the provisions of this section shall be guilty of a misdemeanor.] It is unlawful for any employer who has the legal authority to decrease the wage, salary or compensation of an employee to implement such a decrease unless:

(a) Not less than 7 days before the employee performs any work at the decreased wage, salary or compensation, the employer provides the employee with written notice of the decrease; or

(b) The employer complies with the requirements relating to the decrease that are imposed on the employer pursuant to the provisions of any collective bargaining agreement or any contract between the employer and the employee.

Sec. 8. NRS 608.180 is hereby amended to read as follows:

608.180 The Labor Commissioner or his representative shall cause the provisions of NRS 608.005 to [608.170,] 608.195, inclusive, to be enforced, and upon notice from the Labor Commissioner or his representative:

1. The district attorney of any county in which a violation of those sections has occurred;

2. The Deputy Labor Commissioner, as provided in
NRS 607.050;

3. The Attorney General, as provided in NRS 607.160[;] or 607.220; or

4. The special counsel, as provided in NRS 607.065,

shall prosecute the action for enforcement according to law.

Sec. 9. NRS 608.195 is hereby amended to read as follows:

608.195 1. Except as otherwise provided in NRS 608.0165, [every person violating any of the provisions] any person who violates any provision of NRS 608.005 to [608.190,] 608.195, inclusive, or any regulation adopted pursuant thereto, is guilty of a misdemeanor.

2. In addition to any other remedy or penalty, the Labor Commissioner may impose against the person an administrative penalty of not more than $5,000 for each such violation.

Sec. 10. NRS 608.200 is hereby amended to read as follows:

608.200 1. Except as otherwise provided in this section, the period of employment for all persons who are employed, occupied or engaged in work or labor of any kind or nature in underground mines or underground workings in search for or in extraction of minerals, whether base or precious, metallic or nonmetallic, or who are engaged in such underground mines or underground workings, or who are employed, engaged or occupied in other underground workings of any kind or nature for the purpose of tunneling, making excavations or to accomplish any other purpose or design , must not exceed 8 hours within any 24 hours. The 8-hour limit applies only to time actually employed in the mine and does not include time consumed for meals or travel into or out of the actual work site. It is

unlawful for a person or his agent to hire, contract with or cause any person to work for a period longer than the provisions of this section allow.

2. In cases of emergency where life or property is in danger, the period may be prolonged during the continuance of the emergency.

3. This section does not prevent change in the hours of employment from one part of the day to another at stated periods, nor does it prevent the employment of any of the persons mentioned in this section for more than 8 hours during the day in which a change is made. Such a change in the hours of employment must not occur more than once in any 2 weeks.

4. This section does not preclude a repair or maintenance crew from completing any repair or maintenance work upon which it is engaged at the end of an 8-hour period. This section does not preclude an employee from working a subsequent shift or period thereof in the same 24 hours if no qualified employee is available for relief.

5. If a majority of the employees whose hours are limited by this section agree to a policy proposed by their employer for periods of work in excess of 8 hours in a 24-hour period, the employer may adopt such a policy. The agreement required for such a policy must be evidenced by the results of an election held during regular working hours using secret ballots. All affected employees who are employed by the employer not later than 24 hours before the voting begins are eligible to cast a ballot.

6. Before such an election may be conducted, the employer [shall] must hold informational meetings for the affected employees on each shift during the regular working hours of the affected employees. At each such meeting the employer shall explain the effect of the proposed policy on the hours and compensation of the employees. Written notice of these informational meetings must be posted conspicuously in at least three locations throughout the mine site for at least 7 consecutive days before the date of the meetings. The notice must include the time, date, place and purpose of the meetings. Written notice of the time, date, place and purpose of the election must be posted in the same manner and for the same period. Failure to comply with the procedural requirements of this subsection make the results of the election void for the purposes of this section.

7. [The limitation set forth in subsection 1 and the other provisions in this section do] This section does not apply to employees who are covered by a valid collective bargaining agreement.

8. Any person who willfully violates any provision of subsection 1 [of this section] or any regulation adopted pursuant thereto is guilty of a misdemeanor.

9. In addition to any other remedy or penalty, the Labor Commissioner may impose against the person an administrative penalty of not more than $5,000 for each such violation.

Sec. 11. NRS 608.290 is hereby amended to read as follows:

608.290 [Every person, firm, association or corporation, or any agent, servant, employee or officer of such firm, association or corporation, violating any of the provisions]

1. Any person who violates any provision of NRS 608.250[,] or any regulation adopted pursuant thereto is guilty of a misdemeanor.

2. In addition to any other remedy or penalty, the Labor Commissioner may impose against the person an administrative penalty of not more than $5,000 for each such violation.

Sec. 12. NRS 608.330 is hereby amended to read as follows:

608.330 1. Any person who [fails to comply with the provisions] violates any provision of NRS 608.300 to 608.330, inclusive, or any regulation adopted pursuant thereto is guilty of a misdemeanor.

2. In addition to any other remedy or penalty, the Labor Commissioner may impose against the person an administrative penalty of not more than $5,000 for each such violation.

Sec. 13. NRS 609.270 is hereby amended to read as follows:

609.270 Except as otherwise provided in NRS 609.190 to 609.260, inclusive, [whoever] any person who employs any child[, and whoever, having under his control as parent, guardian or otherwise, any child, permits or suffers] in violation of any provision of this chapter or any regulation adopted pursuant thereto, or any person who has the care, custody or control of any child and who permits or requires the child to be employed or to work in violation of any provision of [the provisions of NRS 609.190 to 609.260, inclusive,] this chapter or any regulation adopted pursuant thereto, is guilty of a misdemeanor.

Sec. 14. NRS 609.281 is hereby amended to read as follows:

609.281 [A person who knowingly employs, permits or requires a child to work in violation of NRS 609.221 is liable, in] In addition to any other remedy or penalty [or remedy that may be provided by law, for a civil] , if any person commits a violation described in NRS 609.270, the Labor Commissioner may impose against the person an administrative penalty of not more than $2,500 for each such violation . [, which may be recovered in a civil action brought by the Labor Commissioner. All money collected as civil penalties pursuant to this section must be deposited in the State General Fund.]

Sec. 15. NRS 611.320 is hereby amended to read as follows:

611.320 1. Any person who violates any [of the provisions] provision of NRS 611.020 to [611.310,] 611.320, inclusive, or any regulation adopted [thereunder,] pursuant thereto, is guilty of a misdemeanor.

2. In addition to any other remedy or penalty, the Labor Commissioner may impose against the person an administrative penalty of not more than $5,000 for each such violation.

Sec. 16. NRS 613.200 is hereby amended to read as follows:

613.200 1. Except as otherwise provided in [subsection 2,] this section, any person, association, company or corporation within this state, or any agent or officer on behalf of the person, association, company or corporation, who willfully does anything intended to prevent any person who for any cause left or was discharged from his or its employ from obtaining employment elsewhere in this state is guilty of a gross misdemeanor and shall be punished by a fine of not more than $5,000.

2. In addition to any other remedy or penalty, the Labor Commissioner may impose against each culpable party an administrative penalty of not more than $5,000 for each such violation.

3. If a fine or an administrative penalty is imposed pursuant to this section, the costs of the proceeding, including investigative costs and attorney’s fees, may be recovered by the Labor Commissioner.

[2.] 4. The provisions of [subsection 1] this section do not prohibit a person, association, company, corporation, agent or officer from negotiating, executing and enforcing an agreement with an employee of the person, association, company or corporation which, upon termination of the employment, prohibits the employee from:

(a) Pursuing a similar vocation in competition with or becoming employed by a competitor of the person, association, company or corporation; or

(b) Disclosing any trade secrets, business methods, lists of customers, secret formulas or processes or confidential information learned or obtained during the course of his employment with the person, association, company or corporation,

if the agreement is supported by valuable consideration and is otherwise reasonable in its scope and duration.

Sec. 17. NRS 613.500 is hereby amended to read as follows:

613.500 1. [The] If any person violates any provision of NRS 613.440 to 613.510, inclusive, or any regulation adopted pursuant thereto, the Labor Commissioner may[, after notice and an opportunity for a hearing, impose a civil] impose against the person an administrative penalty of not more than $9,000 for each

such violation . [of any provision of NRS 613.440 to 613.510, inclusive.]

2. In determining the amount of any administrative penalty[,] to be imposed against the person, the Labor Commissioner shall consider the previous record of the person [committing the violation] in terms of compliance with NRS 613.440 to 613.510, inclusive, and any regulation adopted pursuant thereto, and the [gravity] severity of the violation. [The civil] Any administrative penalty imposed [by this subsection] against the person is in addition to any other [penalties] remedy or penalty provided pursuant to NRS 613.440 to 613.510, inclusive.

[2.] 3. The Labor Commissioner may bring [an] a civil action pursuant to this section to restrain violations of NRS 613.440 to 613.510, inclusive[.] , or any regulation adopted pursuant thereto. A court of competent jurisdiction may issue, without bond, a temporary or permanent restraining order or injunction to require compliance with NRS 613.440 to 613.510, inclusive, or any regulation adopted pursuant thereto, including any legal or equitable relief incident thereto as may be appropriate, such as employment of a prospective employee, reinstatement or promotion of an employee , and the payment of lost wages and benefits.

Sec. 18. NRS 338.015 is hereby amended to read as follows:

338.015 1. The Labor Commissioner shall enforce the provisions of NRS 338.010 to 338.130, inclusive. [When informed of a violation]

2. In addition to any other remedy or penalty provided in this chapter, if any person violates any provision of NRS 338.010 to 338.130, inclusive, or any regulation adopted pursuant thereto, the Labor Commissioner may [hold hearings on and assess a fine] impose against the person an administrative penalty of not more than $5,000 for each such violation . [of those provisions and shall report all violations to the Attorney General.

2.] 3. The Labor Commissioner may, by regulation, establish a sliding scale based on the severity of the violation to determine the amount of the [fine] administrative penalty to be [assessed] imposed against the person pursuant to [subsection 1.

3.] this section.

4. The Labor Commissioner shall report the violation to the Attorney General, and the Attorney General shall prosecute the [violator] person in accordance with law.

Sec. 18.5. NRS 338.016 is hereby amended to read as follows:

338.016 1. If, after an opportunity for a hearing, an administrative penalty is imposed against a contractor on a public work for the commission of an offense:

(a) An eligible bidder, or any person who entered into a contract with the eligible bidder before bids for the contract for the public

work were let, may commence a civil action against the contractor to recover damages suffered as a proximate result of the eligible bidder not being awarded the contract for the public work.

(b) There is a rebuttable presumption that the contractor was awarded the contract for the public work because his bid on the contract was based, in part, on his intent to commit the offense and, as a result, was lower than it otherwise would have been.

2. The court may award costs and reasonable attorney’s fees to the prevailing party in any action brought pursuant to this section.

Sec. 19. NRS 338.090 is hereby amended to read as follows:

338.090 1. Any person, including the officers, agents or employees of a public body, who violates any [of the provisions] provision of NRS 338.010 to 338.090, inclusive, or any regulation adopted pursuant thereto, is guilty of a misdemeanor.

2. The Labor Commissioner, in addition to any other remedy or penalty provided in this chapter:

(a) Shall assess a person who, after an opportunity for a hearing, is found to have failed to pay the prevailing wage required pursuant to NRS 338.020 to 338.090, inclusive, an amount equal to the difference between the prevailing wages required to be paid and the wages [he] the person actually paid; and

(b) May, in addition[,] to any other administrative penalty, impose an administrative [fine] penalty not to exceed the costs [he] the Labor Commissioner incurred to investigate and prosecute the matter.

Sec. 19.5. NRS 338.515 is hereby amended to read as follows:

338.515 1. Except as otherwise provided in NRS 338.525, a public body and its officers or agents awarding a contract for a public work shall pay or cause to be paid to a contractor the progress payments due under the contract within 30 days after the date the public body receives the progress bill or within a shorter period if the provisions of the contract so provide. Not more than 90 percent of the amount of any progress payment may be paid until 50 percent of the work required by the contract has been performed. Thereafter the public body may pay any of the remaining progress payments without withholding additional retainage if, in the opinion of the public body, satisfactory progress is being made in the work.

2. Except as otherwise provided in NRS 338.525, a public body shall identify in the contract and pay or cause to be paid to a contractor the actual cost of the supplies, materials and equipment that:

(a) Are identified in the contract;

(b) Have been delivered and stored at a location, and in the time and manner, specified in a contract by the contractor or a subcontractor or supplier for use in the construction, repair or reconstruction of the public work; and

within 30 days after the public body receives a progress bill from the contractor for those supplies, materials or equipment.

3. A public body shall pay or cause to be paid to the contractor at the end of each quarter interest for the quarter on any amount withheld by the public body pursuant to NRS 338.400 to 338.645, inclusive, at a rate equal to the rate quoted by at least three financial institutions as the highest rate paid on a certificate of deposit whose duration is approximately 90 days on the first day of the quarter. If the amount due to a contractor pursuant to this subsection for any quarter is less than $500, the public body may hold the interest until:

(a) The end of a subsequent quarter after which the amount of interest due is $500 or more;

(b) The end of the fourth consecutive quarter for which no interest has been paid to the contractor; or

whichever occurs first.

4. If the Labor Commissioner has reason to believe that [an employee has a valid and enforceable claim for wages against] a workman is owed wages by a contractor, he may require the public body to withhold from any payment due the contractor under this section and pay the Labor Commissioner instead, an amount equal to the amount [claimed by the employee.] the Labor Commissioner believes the contractor owes to the workman. This amount must be paid to the [employee] workman if the [claim] matter is resolved in his favor, otherwise it must be returned to the public body for payment to the contractor.

Sec. 20. NRS 412.139 is hereby amended to read as follows:

412.139 1. An employer may not terminate the employment

of a member of the Nevada National Guard because the member is

ordered to active service or duty pursuant to NRS 412.122 or

412.124.

2. Any employer who violates subsection 1 is guilty of a

misdemeanor.

3. In addition to any other remedy or penalty, the Labor

Commissioner may impose against the employer an administrative

penalty of not more than $5,000 for each such violation.

Sec. 21. This act becomes effective upon passage and

approval.

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