Employment Discrimination, Wrongful Termination, Workplace Rights, and Wage Claims
Click on the links below for more information regarding additional topics in employment law. Nevada Legal Services, Inc. does not generally assist clients seeking assistance with employment discrimination, wrongful termination, workplace rights claims and issues, or wage claims. If you would like further assistance and do not know of an attorney that may be able to help you, see the Lawyer Referral and Information Service of the Nevada State Bar.
The information contained in this page is for informational purposes and does not take the place of an attorney.
What is employment discrimination?
Can an employment agency or labor organization be guilty of employment discrimination?
What is a protected group?
Where do I file a discrimination complaint?
How much time do I have to file?
Do employment discrimination laws apply to my employer?
Does my employer have to change my job because of my disability?
Employment discrimination can happen at any stage of the employment process-from hiring to firing. Common examples include: not getting a job offer; applying for one job and getting another, usually involving less pay; not given a promotion or other job related benefits; being harassed or abused at work; having to retire before you are ready; and getting fired. In fact, any adverse action by your employer may give rise to a violation of employment discrimination laws.
Always remember that employment discrimination depends on an adverse action by the employer based on your membership in a protected group. See What is a protected group? for more information.
Along with being a member of a protected group, you must be qualified for the job, promotion, or other job related benefit. For example, a qualified man and woman apply for the same job. The employer offers the job to the man and discriminates against the woman because of her sex. This would be employment discrimination. However, the employer would have the opportunity to dispute the discrimination charge by showing the man was more qualified or some other non-discriminatory reason for not hiring the woman.
Yes, employment discrimination laws apply to employment agencies and labor organizations.
General protections provided by federal law extend to qualities such as your race, color, age (40 or older), religion, nationality, sex, family size or pregnancy, and disability. Nevada law adds sexual orientation and gender identity or expression to these protected qualities.
You may file your employment discrimination complaint with the Nevada Equal Rights Commission (NERC) or the Equal Employment Opportunity Commission (EEOC). You cannot file a lawsuit unless you first complain to either NERC or EEOC.
EEOC’s Nevada Office is at 333 Las Vegas Boulevard South, Suite 8112, Las Vegas, Nevada (702) 388-5094. For those outside of Clark County, the toll-free number is (800) 669-4000. For hearing impaired, the TTY number is (800) 669-6820. The Office is open Monday through Friday, 8 a.m. to 4:30 p.m. Contact information for NERC is as follows:
|Equal Rights Commission||Equal Rights Commission|
|Las Vegas||Northern Nevada (Inside JobConnect)|
|555 E. Washington Avenue, Suite 4000||1675 East Prater Way, Suite 103|
|Las Vegas, NV 89101||Sparks, NV 89434|
|Phone (702) 486-7161||Phone (775) 823-6690|
|Fax (702) 486-7054||Fax (775) 688-1292|
You have 180 days to file an employment discrimination claim with the Nevada Equal Rights Commission (NERC). These days are counted from the date of the last day of discrimination. If you want to file the federal Equal Employment Opportunity Commission, you have 300 days only if you have filed a complaint with NERC within 180 days.
Generally, federal law applies to any employer who has 15 or more employees. For age discrimination claims, the employer must have at least 20 employees. Nevada law only requires 15 employees or more for ALL claims.
Employment discrimination laws do NOT apply to private, not-for-profit organizations, any Indian tribe, and the United States and any corporation wholly owned by the United States.
Yes, your employer has to accommodate your disability by allowing reasonable modifications to the elements of your job, your job description, and responsibilities. See the ADA information below.
What is “at-will” employment?
Nevada is an at-will employment state which means an at-will employee can be discharged whenever and for whatever cause without giving rise to liability on the part of the employer. A wrongful termination or tortious discharge occurs when you have an exception to at-will employment.
What are the exceptions to at-will employment?
Nevada law recognizes several exceptions to at-will employment. You may have a contract with your employer and if your termination violates your employment contract, this would be a wrongful termination or tortious discharge. Your contract can be written, spoken, or implied from the conduct of your employer. Southwest Gas v. Vargas, 901 P.2d 693 (Nev. 1995). This right may also be based on a personnel manual or employee handbook. Southwest Gas Corp. v. Ahmad, 668 P.2d 261 (1983).
Also, the Nevada Supreme Court has recognized a general exception to at-will employment: where the termination violates the public policy of the state. D’Angelo v. Gardner, 819 P.2d 206, 216 (Nev. 1991).
Public policy includes retaliatory firing for refusing an assignment that created a health risk (D’Angelo), termination after filing a worker’s compensation claim, performing jury duty, avoiding payment of retirement benefits, or refusing to violate the law are all examples of tortious discharge. See NRS 6.190, Hansen v. Harrah’s, 675 P.2d 394 (Nev. 1984), Dillard Department Stores v. Beckwith, 989 P.2d 882 (Nev. 1999), Kmart Corp. v. Ponsock, 732 P.2d 1364 (Nev. 1987).
Federal law also contains worker protections for whistle-blowers, like reporting OSHA violations. Click here for more information on your federal rights.
Your workplace rights under the Family and Medical Leave Act (FMLA) and American’s With Disabilities Act (ADA)
What are my rights under FMLA?
How much time can I take off?
What are the exceptions to FMLA?
What should I do if I need more than 12 weeks?
Do I need to certify my need for FMLA?
How do I request an ADA accommodation from my employer?
When does the ADA apply?
What qualifies as a disability under the ADA?
Do I have to reveal my disability to my employer?
What if my employer denies my accommodation request?
Your rights under FMLA begin when you, your spouse, child or parent has a serious medical condition that makes you unable to perform one or more of your essential job functions. The typical situation is when you or your spouse has a baby and you must stay home to care for the newborn, your spouse, or both. FMLA allows you to take time off (unpaid) and forces your employer to maintain your pay, position or equivalent, and health insurance while you are out. If you pay for health insurance, you must continue these payments during your absence.
FMLA is the minimum required by federal law. Your employer may offer greater benefits.
FMLA allows you to take 12 weeks of unpaid leave each 12 months you work.
FMLA does not apply if your employer has less than 50 employees within a 75 mile radius. You must have worked for your employer for at least 12 months and have worked at least 1,250 hours during the previous year. A request for FMLA must be submitted at least 30 days prior to leaving, unless unpractical or unforeseeable.
Your employer does not have to provide FMLA if you are a “key” employee. A key employee is among the highest paid ten percent of employees within a 75 mile radius and leave will cause “substantial and grievous economic injury” to the company. For key employees, the employer does NOT have to reinstate you to your former job. However, your employer must notify you of your key employee status and give you a chance to return to work or not take FMLA.
Any period longer than 12 weeks may result in the loss of your job and FMLA benefits. You can take FMLA leave intermittently to allow you to work less than full time until you aggregate 12 full weeks. You may have additional rights under your employment manual.
If you are not able to perform an essential function of your job or your leave extends beyond 12 weeks, your employer can fire you. Smith v. Guard Publishing, 963 P.2d 115 (Or. App. 1998).
If you need additional time based on a disability, you can request that your employer accommodate you under the ADA. See How do I request an accommodation from my employer? for more information.
Your employer may require the medical need to be supported by a certification issued by a health care provider. If so, your employer must allow at least 15 days to obtain the medical certification.
After you return, the employer can also request certification of your fitness to return to work.
You do not need to be a lawyer to present a legally sufficient request for accommodation to your employer. To protect your rights, you should submit a written request to your employer asking for changes to your job duties or restructuring of your job to accommodate your disability.
The ADA may also require the employer to allow an indeterminate amount of leave, barring the employer’s undue hardship, as a reasonable accommodation. A reasonable accommodation also may required your employer to provide an equivalent vacant position, reduced work hours, or any other mutually acceptable accommodation.
The ADA applies to employers who receive some federal financial assistance and employ 15 or more employees. 28 CFR Part 42.103.
Under the ADA, “disability” is defined as an impairment that substantially limits one or more life activities, a record of such an impairment, or being regarded as having such an impairment.
The accommodation process with your employer is meant to be interactive, where you explore the different ways your employer can help you do your job. This interactive process usually requires letting your employer know the extent and quality of your limitations and this may include some medical evidence establishing your disability.
If your employer denies your request, you can file a complaint with the Equal Employment Opportunity Commission (EEOC). EEOC’s Nevada Office is at 333 Las Vegas Boulevard South, Suite 8112, Las Vegas, Nevada (702) 388-5094. For those outside of Clark County, the toll-free number is (800) 669-4000. For hearing impaired, the TTY number is (800) 669-6820. The Office is open Monday through Friday, 8 a.m. to 4:30 p.m.
What is the minimum wage in Nevada?
Are tips included in calculating minimum wage?
My employer refuses to pay me. What can I do?
I have just been fired or laid off. How long do I have to wait before my employer pays me?
I just quit my job. How long do I have to wait before my employer pays me?
My employer just told me that my wages will be decreasing. Can they do this?
What can I do if I do not want to agree to the decrease in my wages?
What are the rules regarding overtime?
What is the minimum wage in Nevada?
For employees that have qualifying health benefits available from their employer, the minimum wage is $7.25 per hour. For all other employees the minimum wage is $8.25 per hour (As of July 1, 2011).
Your employer must pay you at least these minimum amounts. Anything less violates federal law. Your employer must also pay taxes and unemployment insurance, along with any other costs like required uniforms
No, tips are not included.My employer refuses to pay me. What can I do?
Your employer must pay you within 15 days of each pay period, at least twice a month. If you do not get paid, or your pay is less than you expect, you can file a wage claim with Nevada’s Labor Commission.
|LAS VEGAS||CARSON CITY|
|Office of the Labor Commissioner||Office of the Labor Commissioner|
|555 E. Washington Avenue, Suite 4100||675 Fairview Drive, Suite 226|
|Las Vegas, Nevada 89101||Carson City, Nevada 89701|
|Phone (702) 486-2650||Phone (775) 687-4850|
|Fax (775) 486-2660||Fax (775) 687-6409|
|E-mail mail1@LaborCommissioner.com||E-mail mail1@LaborCommissioner.com|
Your employer must pay you immediately. If your employer still has not paid you after 3 days, you can collect regular pay for the next 30 days or until paid, whichever is sooner. NRS 608.040. If your employer does not pay within these time periods, or the amount due under NRS 608.040, you can file a claim with Nevada’s Labor Commissioner. See above.I just quit my job. How long do I have to wait before my employer pays me?
Under Nevada law, your employer has to pay you within 7 days of leaving or when you usually get your paycheck, whichever is sooner. NRS 608.030. If your employer does not pay within this time period, you can file a claim with Nevada’s Labor Commissioner. See above.My employer just told me that my wages will be decreasing. Can they do this?
NRS 608.100 allows your employer to decrease your hourly wage if you do not have an agreement or contract. If you belong to a union subject to a collective bargaining agreement with your employer, your wages cannot be lowered except under the terms of the collective bargaining agreement. If you are subject to federal prevailing wage law, your employer would also not be able to lower your wages.
If these exceptions do not apply, your employer could then decrease your wages with 7 days advance written notice. Also, the decrease must not be less than the minimum wage as required by Nevada law. For employees that have qualifying health benefits available from their employer, the minimum wage is $7.25 per hour. For all other employees the minimum wage is $8.25 per hour (As of July 1, 2011).
When your employer wants to decrease your wages, you may have the opportunity to quit and collect unemployment compensation if you cannot find other work. You can claim “good cause” for quitting if your wages decrease more than 25% or if the decrease in pay will result in little or no compensation for you, after deduction for work expenses. The following cases support this legal standard.
Bunny’s Waffle Shop, Inc. v. California Emp. Comm., 151 P.2d 224 (Cal. 1944) (25%); Scott v. Photo Center, Inc., 306 Minn. 235 N.W.2d 616, 617 (Minn. 1975) (“general rule that a substantial pay reduction gives an employee good cause for quitting,” and, here, a twenty-five percent wage cut was good cause).
Your employer must pay you 1.5 times your regular pay if your work more than 40 hours in a week or 8 hours in a day. This only applies if you do not qualify for an exception under the Fair Labor Standards Act and your earn less than 1.5 times the minimum wage or less than $10.875, if you have qualifying health benefits, and $12.375 for all other employees (As of July 1, 2011). See the following link for more information on exceptions to the Fair Labor Standards Act.