Las Vegas Injury Lawyers Blog

A word renowned poker player and one of the youngest players to ever win eight World Series of Poker (WSOP) bracelets, Phil Ivey was born in California and raised in New Jersey. Three days before Christmas in 2009, Phil and his wife Luciaetta filed a joint petition for divorce. Seven days later, with both parties present, the divorce was granted by Family Court Judge Bill Gonzalez. Luciaetta is now back in court and has asked the Nevada Supreme Court to disqualify Judge Gonzalez from deciding any further issues in this matter.

From January 2010 to April 2011, Phil Ivey paid monthly alimony to Luciaetta. According to court documents, Ivey ceased making these payments when he stopped receiving income from one of his sponsors. When Ivey's attorney refused to turn over documentation verifying the loss of income, Bruce Shapiro, Luciaetta's attorney, filed suit. The suit also requested that Judge Gonzalez be barred from hearing the new matter due to a lack of impartiality and a new Family Court judge be assigned.

The question of Judge Gonzalez's impartiality stems from five political contributions made in 2010 to Judge Gonzalez for his successful November 2010 reelection - $5,000 from Phil Ivey, $1,000 from Phil's divorce attorney, David Chesnoff, $2,500 from Chesnoff's wife, $1,000 from Chesnoff's law partner, and $500 from Attorney John Spilotro who Shapiro and Luciaetta claim was "hand-picked" by Ivey to represent Luciaetta in the divorce proceedings.

Nevada law allows individuals to contribute up to $10,000 to any judicial candidate. Additionally there is no law that prevents a judicial candidate from receiving a political contribution from someone who appears, has appeared, or is likely to appear before the judge in a legal matter. Nevertheless Nevada law bars judges from presiding over cases in which they have "actual bias or prejudice for or against one of the parties."

The Nevada Supreme Court has taken this a step further by holding that a "recusal would be a necessary step to alleviate or obviate" even the appearance of impropriety, while the Nevada Code of Judicial Conduct has held that "a judge is disqualified whenever the judge's impartiality might reasonably be questioned." However the Nevada Supreme Court, following the U.S. Supreme Court in Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009), has expressly rejected proposals that would dictate what amount of political contribution would give rise to a judicial disqualification. Despite the recommendations of the Commission on the Amendment to the Nevada Code of Judicial Conduct, the Court felt an automatic judicial recusal when an individual or law firm campaign contribution equaled $50,000 or 5% of the judge's total campaign donations for the previous six years.

Judge Gonzalez denied Luciaetta's original affidavit implying bias or prejudice on the part of Judge Gonzalez. The Chief Judge of the Eighth Judicial District Court of Nevada denied Luciaetta's second motion to remove Judge Gonzalez stating "there was not even an appearance of impropriety or any bias on the part of Judge Gonzalez. In addition, Rule 60(b) of the Nevada Rules of Civil Procedure clearly states that unless action is taken within six months of the date of the signing of the decree, a party is barred from proceeding. "Luciaetta's appeal of these holdings is now before the Nevada Supreme Court who has held the issue of Judge Gonzalez's bias due to campaign contributions is an "arguable merit."

Continue reading "Contributions to a Nevada Judge Basis for Disqualification" »

24/7, 365 days a year, is a big reason Las Vegas is one of the most popular tourist destinations in the world. At any hour of the day, Las Vegas visitors can gamble, see a show, be entertained, or just grab a bite to eat. And to ensure these activities operate smoothly, Las Vegas employs one of the largest entertainment work forces, which as seen in several recent lawsuits, can be an overtime challenge for many Las Vegas employers. In Kwame Luangisa vs. Interface Operations LLC et al, and Olsen v. Wynn Las Vegas LLC, the plaintiffs allege they were denied overtime wages and that such denial is a violation of the Fair Labor Standards Act (FLSA) and Nevada's Revenue Statue NRS 608.018.

Under the FLSA an employee is someone who is "engaged in interstate commerce or in the production of goods for commerce, or who is employed by an enterprise engaged in commerce or in the production of goods for commerce", unless the employer can claim an exemption from coverage." An employer is defined as "any person acting directly or indirectly in the interest of an employer in relation to the employee." Though the FLSA exempts executive, administrative, or professional employees, as well as drivers from the definition of employee, whether a worker falls into these categories, or any other exempt employee category, or a business is an employer, is often a disputed question in labor lawsuits.

For example, In the Luangisa case, Kwame Luangisa worked as the personal driver for Sheldon Adelson, the CEO of the Venetia Resort Hotel Casino, Palazzo Las Vegas, and Sands Convention Center in Las Vegas. From 2007, when he was hired, until 2011, Luangisa alleges he was responsible for driving Mr. Adelson, primarily in Las Vegas and Malibu, CA, for 12 to 18 hours a day, seven days a week. Luangisa claims he is entitled to but never received overtime pay. Adelson and Interface Operations LLC, which owns the Vegas properties, allege as a salaried employee, Luangisa is not entitled to overtime.

In the Olsen case, Richard Olsen worked as an investigator and executive protection agent for Wynn Resorts Ltd. Though he worked many hours in excess of the standard eight, Olsen was not compensated for any overtime wages. Like Interface Operations, Wynn Resorts claims as a salaried employee, Olsen is not entitled to any overtime pay.

Under the FLSA, an employer is generally responsible for overtime pay of "1.5 times an employee's regular wage rate ... whenever an employee works more than 40 hours in any scheduled week of work or more than 8 hours in any workday." Employees who are paid a flat salary as opposed to an hourly wage are covered by the FLSA rules and requirements, and their overtime wage is calculated by dividing their compensation by the number of hours required to work for that compensation. The FLSA does not require that the number of hours required to work be 40. It can be less or more.

Continue reading "Overtime - A Big Problem for Las Vegas Employers, Employees, & Agents" »

Scenario One: You're out with your friends at a Las Vegas nightclub when a fight breaks out next to you. Though you try to get out of harm's way, another patron slams into you. And no matter how hard you try to get up and away from the melee, you are kicked and bruised as other patrons try to get away. In addition to bruises, you suffer two broken ribs, severely bruised fingers, and a concussion.

Scenario Two: Standing in line to gain entry into a one of the hottest nightclubs on the Las Vegas strip, a patron gets belligerent when the bouncer refuses him entry. He takes a swing at the bouncer but his fist slams into your face.

Scenario Three: You've had a great night out with your friends at an area nightclub. As you walk to your car, which is parked in the nightclub's parking lot, you're mugged and pushed to the ground, sustaining a broken arm and bruises.

Though these nightclub scenarios are not everyday occurrences, assault and batteries, even fatalities, at nightclubs do occur. An innocent night on the town takes a wrong turn and tragic circumstances occur. In addition to physical injuries, assaults can cause emotional suffering.

Premise liability laws establish the legal duty a property owner, i.e. a nightclub owner, has to anyone while they are on the property owner's property. Nevada premise liability laws, which cover Las Vegas, require property owners, which include nightclub owners, to keep their properties, buildings and grounds, safe for patrons. This means Las Vegas nightclub owners not only must provide adequate security personnel or personal protection for their patrons, but also equip their buildings and grounds (hallways, parking lots, lobbies, etc) with sufficient lighting, locks, and any other features necessary to keep their patrons safe. When a Las Vegas nightclub owner fails to make their buildings and ground reasonably safe and a dangerous situation or condition arises on their property, they can be considered negligent and held responsible for injuries a patron sustains.

Proving a Las Vegas nightclub owner is liable for injuries sustained on their property is not always clear-cut, though. First it must be shown there are actually physical and/or emotional injuries. Next it must be clearly established that these injuries occurred on the nightclub owner's property. If the injuries occurred off the nightclub owner's property, it is much more difficult to show the nightclub owner has been negligent and is therefore responsible for the injuries sustained. For instance, if instead of parking in the nightclub's parking lot, the patron parked two blocks away on a city street, the city of Las Vegas, and not the nightclub owner could be liable for the injuries.

After the first two issues are proven, evidence must then be presented establishing how the nightclub owner was negligent, that it was foreseeable injuries could incur, and that if adequate security measures had been implemented the injuries could have been prevented.

Continue reading "Nightclub Owners Are Responsible for Assaults" »

When dozens of runners from the Las Vegas "Rock and Roll" marathon posted on the event's Facebook page how they fell ill during and after the marathon, Southern Nevada Health District swooped in. Fecal samples from several runners were tested to determine if the runners had a gastrointestinal illness, the stomach flu, or some other disease. Over 800 of the marathon participants then were required to fill out an online health survey for the Health District. Competitor Group, the marathon sponsor, also began an investigation into its water distribution process, which included water stored in plastic lined garbage cans, and is used for all its marathons, after several runners questioned whether this process was the cause of their illnesses.

With millions of visitors each year and thousands of restaurants and food services, Las Vegas takes food safety seriously. Whether from running in a restaurant or dining at an eatery, if you believe you have suffered a case of food poisoning you need to know what to do.

Food poisoning symptoms can include nausea, vomiting, diarrhea, fever, and abdominal cramps or pain. Symptoms may begin immediately, within a few hours, or even days or weeks after eating the potentially contaminated food. Symptoms may last for a few hours to a day or even longer. When the symptoms are severe or include blood in the stool, continuous fever, trouble swallowing or speaking, vision issues, or muscle weakness, you should immediately seek medical attention. If your medical practitioner does not contact the health department, make sure you contact your local department to fill out a report so your potential case can be investigated and to also stop others from becoming ill.

Food poisoning disputes are usually based on a product liability assertion that the food was defective and the defect in the food caused injury. Under Nevada law, which is followed in Las Vegas, the three product liability assertions are strict product liability, negligence, and breach of warranty. If the food poisoning causes a fatality, affected families may also have a wrongful death lawsuit. Food poisoning disputes based on product liability must be brought within four years of the date on which the injury occurred. A Nevada wrongful death action must be filed within 2 years of the date of death.

Regardless of which cause of action is pursued, proving you have suffered food poisoning is a challenge because of the time delay between when the food was eaten and when one becomes ill, or seriously enough ill to visit a medical practitioner. If the food that is alleged to have caused the poisoning is not available for testing, lab tests on the individual must be done to show there is some type of bacteria, virus, or parasite present in the body. Generally, anyone involved in the food's chain of distribution from processing to the ultimate seller may be responsible for damages.

Continue reading "Food Poisoning is a Safety and Legal Issue" »

In the recent Hoover Dam helicopter crash, five people, the pilot and four tour passengers, were killed when their tour helicopter slammed into a mountainside. This wasn't the first tour crash for the tour operators - Sundance Helicopters.

In 2003, a Sundance helicopter crashed in Descent Canyon, about a mile from the Grand Canyon, after slamming into a canyon wall. In that crash the pilot and six tour passengers were killed.

After a lengthy investigation, the National Transportation Safety Board (NTSB) issued a report which held that the "probable cause of this accident was the pilot's disregard of safe flying procedures and misjudgment of the helicopter's proximity to terrain, which resulted in an in-flight collision with a canyon wall." Though a certified and seasoned airplane and helicopter pilot and instructor with almost 8,000 flight hours, including almost 7,000 flight hours in helicopters, and no FAA history of accidents or enforcements, federal investigators found the pilot had a history of subjecting tour passengers to risky flight maneuvers.

Previous tour passengers who had flown with the pilot said the pilot, among other things, would hover the helicopter then make steep dives into the canyon. The pilot also flew close to the canyon walls and made excessively fast stops. Tour passengers called him "dangerous." After flying with the pilot a Sundance official also questioned the pilot's safety. But though Sundance thereafter suspended the pilot for a week without pay, the suspension was not enforced.

The NTSB found that Sundance and the Federal Aviation Administration (FAA) also contributed to the accident by not providing "adequate surveillance of Sundance's air tour operations in Descent Canyon."

Several other helicopter crashes have occurred in Nevada in the last few years.

• In 2007, five Navy service members were killed during a night training mission near the Fallon Range Training Complex when their helicopter struck a NV Energy power line and subsequently crashed.
• In 2010, after rescuing a stranded climber, a pilot and three emergency rescue operators were injured when their helicopter then crashed in the Ruby Mountains.
• In 2011, a pilot was killed and three sheriff officers injured when their plane crashed near Southern Nevada.

In these types of crashes, injured survivors and the families of lost crash victims often look to the courts to determine what happened, who's liable, and resolve any compensation issues. Typical legal suits filed center generally allege wrongful death against the helicopter operators and/or product liability against the helicopter operators and manufacturers. Other potential defendants can be injured survivors and crash victims if actions on their parts were negligent and contributed to the crash, and government bodies if the crash location was improperly maintained.

Continue reading "Crash Victims - Lawsuits Are Inevitable" »

Food poisoning can not only cause significant injury, and in some severe cases even death, it can also put a major financial burden on victims in terms of lost wages, medical costs, and other expenses. According to the CDC, though, only a small number of food poisoning cases are reported. Of the cases reported, however, "norovirus was the most common agent and salmonella was the second most." While poultry, beef, and fish are often the top three culprits, food poisoning can also occur from contaminated fruits and vegetables, and any products using any of these food items.

Food contamination can occur in the harvest, sanitation, preparation, or storage processes. According to the Nevada Department of Health and Human Services Health Division the 5 major risk factors that contribute to food borne illnesses are improper handling temperatures, inadequate cooking, contaminated equipment, food from unsafe sources, and poor personal hygiene.

If you believe you have suffered from a food poisoning injury, it is important to consult a Nevada attorney as soon as possible to protect your rights. A Nevada attorney specialized in food safety issues will review your case, contact the proper health authorities to prevent further outbreaks, ensure you receive adequate health care, and file a case against anyone who may be the cause of the food defect.

In Nevada, food poisoning cases generally fall under a product liability assertion - strict product liability, negligence, or breach of warranty. Under strict product liability, once it is proven that the food product was defective and that the defective product caused injury, the manufacturer or supplier is liable. That the manufacturer or supplier exercised sufficient care to ensure the safety of the food is not a defense to strict product liability.

In addition to alleging strict product liability, food poisoning victims can also bring a cause of action against a manufacturer or supplier on the basis that the manufacturer or supplier was negligent (did not take enough care or perform enough safety procedures) over the food product to ensure the food product was not contaminated, that such lack of care caused the food to be contaminated, that the contamination caused injury, and there are damages. Though Nevada has not adopted a specific test in determining the manufacturer's or supplier's negligence the standard of proof is that the manufacturer or supplier failed to exercise "reasonable care."

Breach of warranty occurs in a food poisoning case when an express or implied warranty from the manufacturer or supplier that the food product is fit for consumption is violated.

If a victim dies from food poisoning, a wrongful death suit may also be brought by the victim's family and/or loved ones. If it can be shown that a large group of people became ill from a food defect, the victims may join together and file a class action lawsuit.

Continue reading "The Causes of Actions in a Food Poisoning Case" »

In November 2008, the state of Nevada granted Daniel Friedman and Kevyn Wynn nee Friedman a divorce and gave the parents joint legal custody. Sole physical custody was given to Kevyn Wynn, but if she ever moved to California, per the parents' agreement, joint physical custody would be instituted. After both parents separately moved to California, Kevyn filed a motion in Nevada's District Court requesting sole physical custody. Daniel then filed suit in California asking for enforcement of the original court decree for joint custody, and in Nevada requesting dismissal of Kevyn's motion on the grounds that Nevada no longer had judicial oversight of their child custody matter.

Although both parents now resided in California and the previous divorce decree made a stipulation regarding physical custody in California, the District Court denied Daniel's motion and held Nevada did have jurisdiction in this matter. The District Court then sided with Kevyn and awarded her sole physical custody of their three children. Daniel then made an appeal of the District Court's decision, asking the Nevada Supreme Court for a writ of prohibition and/or mandamus on the District Court's decision.

The District Court held that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which both Nevada and California adopted, applied in this matter. Under Section 202(a)(2) of the UCCJEA which is codified in NRS 125A.315(1)(b) "a court will not maintain jurisdiction in a prior child custody matter if "the child, the child's parents and any person acting as a parent do not presently reside in th[e] State." Therefore jurisdiction of the child custody matter resided in California, not Nevada.

However, since Daniel and Kevyn's agreement was in writing and stated that the state of Nevada was their choice of forum for matters relating to child custody matters, the UCCJEA was trumped and determination of physical custody resided with the District Court's Family Court. The District Court specifically cited the wording in the agreement that "it is the parents' intent that no court other than this Court and the courts of the State of Nevada shall have jurisdiction over the parties or the subject matter to consider any issue pertaining to the custody and/or support of the parent[s'] minor children, including, but not necessarily limited to, any motion or action that may be filed by either parent seeking a change of custody [or] a change in the parent[s'] timeshare arrangement . . . ."

The Nevada Supreme Court overturned the District Court's decision held that the UCCJEA did apply, and as codified in NRS 125A.315(1)(b), Nevada's jurisdiction in this matter ends when "[a] court of this state or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this state." Though the parents and three Friedman children now lived in California, no California court had been awarded the opportunity to make such a determination of residency. The District Court made such a jurisdiction-ending determination in this case when it found that Kevyn, Daniel, and the children no longer resided in Nevada. As such the District Court was instructed to issue writs of prohibition and mandamus and dismiss the case until such time a California court rejects jurisdiction of the matter in favor of the state of Nevada.

Continue reading "Nevada Supreme Court Withholds Child Custody Jurisdiction when Divorce Decree Silent" »

In this day of economic recession, businesses look for any way to increase their bottom line. With the rising cost of employee benefits and the sometimes onerous burden of employment taxes, businesses try to save money by "replacing" their employees with independent contractors and volunteers. Too often this "replacement" is facilitated by just changing the labor category of the worker from employee to independent contractor, even though the identity of the worker stays the same.

While this recategorization can save money for the business, it does the opposite for state and federal governments who utilize employment tax revenue to provide services for the general population. As such, many governments are cracking down on businesses who attempt to circumvent employment taxes by recategorizing employees as independent contractors or volunteers.

Under the Fair Labor Standards Act (FLSA) an employee is someone who is "engaged in interstate commerce or in the production of goods for commerce, or who is employed by an enterprise engaged in commerce or in the production of goods for commerce", unless the employer can claim an exemption from coverage." And there is considerable case law pointing out that categorizing a worker as an independent contractor, or a volunteer, does not make them so.

In determining what employment category a worker falls into, the court will review the total "economic reality" relationship between the worker and his/her employer. Though generally whether one is an employee or independent contractor/volunteer comes down to a determination of who is in control - the worker or employer - the court's review will also focus on two other areas - the relationship and the financial circumstances.

Control (Behavior): Independent contractors (IC) exert control over their work. Though the business identifies what work is to be completed, an IC determines who will complete the work and is responsible for hiring these workers, how it will be completed including what tools, equipment, and supplies are used, where it will be completed, and when it will be completed to meet the deadline given by the business. If any special skills or training is required to complete the work, an IC is administratively and financially responsible for ensuring anyone working on the project meets this need. A court is more likely to find a worker is an employee and not an IC when the amount of detailed instruction given to complete the above is given to the worker.

Financial Circumstances: The IRS outlines five financial areas which go into determining whether a worker is an IC or employee - whether the worker has made a significant investment in the tools, equipment, and supplies needed to complete the project, whether the worker is reimbursed for their expenses, whether the worker can incur a profit or loss, whether the worker operates a business, pays taxes, and offers their services to the public, and how the worker is paid. Workers who engage in these five areas are often deemed IC.

The Relationship: In the relationship between a business and an IC, one generally finds a written contract spelling out the terms of the work required and when it is due. That the work to be performed is not a key aspect of the business and employee benefits is not provided.

No area or factor is considered more important than another. All are reviewed and each case is taken on a case-by-case basis.

Continue reading "FLSA - Employee versus Independent Contractor" »

By 1938, the Great Depression had wrecked a lengthy and widespread economic havoc on the country. Pressured to give the working populace some relief, President Franklin Roosevelt enacted the Fair Labor Standards Act (FLSA). No longer could businesses financially exploit their workers to make a profit. No longer did workers have few to no rights regarding their workplace conditions. And for the first time, a minimum wage, overtime pay, and child labor standards were law, applicable to any employee (low-level, management, and executives). Businesses who violated these laws could now be penalized and sued.

Almost a century later the FLSA still stands, but while most are familiar with its basic rules, many are unaware of the nuances within the FLSA. One nuance applies to gender equality.

Regardless of whether a job is done by a man or woman the amount of pay for a job is determined by its job requirements. Under the Equal Pay Act (29 U.S.C. § 206.), a 1963 amendment to the FLSA, men and women are to receive equal pay for equal work. However, businesses can compensate men and women workers differently if the pay differences are not based on gender, but on a "bona fide seniority system, merit system or incentive "system.

A system is bona fide if the following criteria are met:

• The system is not implemented with a purpose to discriminate for gender reasons, and
• Specific criteria that are used to assess the worker's productivity, merit, or seniority are ... determined prior to the pay disparity, the reason(s) for the pay differences, properly communicated to the entire work force, and applied equitably to all workers.

Any seniority pay increases that do not meet these criteria must be justified. If it is determined the pay increase was arbitrarily applied, it can be a violation of the FLSA.

Additionally, if the business implements a merit pay system, workers should receive periodic performance evaluations that objectively asses the worker's accuracy, efficiency, and ability of preset criteria. Performance evaluations cannot be solely based on management's subjectivity.

But if a business does not have a bona fide system, it is not automatic that a worker has a punishable FLSA violation. Businesses are given the opportunity to prove that though there is no bona fide system, any difference in pay is still not based on gender, but other factors which are germane to the requirements of the job, providing specific benefits to or further the business, or enhancing an employment practice within the business. Additionally, the business is still required to show these factors are applicable to all their workers regardless of gender and that workers have knowledge these factors are used in determining pay.

Factors not based on gender that have been used to validate pay differences for men and women are:

• The workers' have different experience, education, training, and skills.
• The worker generates more revenue for the company.
• The job is performed on the 2nd or 3rd shift, is part-time, seasonal, or temporary.

Continue reading "The Equal Pay Nuances to the FLSA" »

As any Nevada business owner and employee know, the workplace environment can be dangerous. The Occupational Safety and Health Administration (OSHA) establishes the standards and oversees health and safety laws throughout the nation. OSHA also furnishes training and education for businesses. In Nevada, the state, like 24 other states, operates its own OSHA approved health and safety programs. But while business owners are ultimately responsible for ensuring the workplace is safe and healthy, it is as important for both business owners and employees to be proactive in maintaining safety and negating hazardous situations. To ensure you are physically and legally protected, institute a few common practices.

Assess job hazards: Far too often we see but don't notice. Business owners and employees must take a critical eye to every physical aspect of the business to determine if it poses a health or safety hazard to employees, agents, and/or customers. Initially, and then periodically, conduct a full analysis of the business' physical property, including buildings, outdoor areas, and equipment. For each department, review job processes and get feedback from employees on any health or safety concerns. It is very important that not only is each job process analyzed with the employee(s) who perform(s) the task, but that business owners create an environment where employees feel comfortable in giving feedback. The latter is truly valuable in revealing unknown hazards with equipment and/or procedures, or pointing out dangerous or potentially dangerous situations.

Assess risk: Every Nevada business owner needs to determine their potential risk for every unsafe or potentially unsafe situation versus the cost to eliminate these unsafe or potentially unsafe situations. While the ideal work environment is 100% free of unsafe or dangerous conditions, this is unrealistic for any business owner. However, ignoring unsafe or potential unsafe conditions which can be eliminated or reduced with a reasonable cost and care can increase the liability of the business owner.

Establish a Written Policy: Every Nevada business owner should establish a written policy to govern employees' actions to report health and safety concerns and the company's process for handling a report. The policy should identify the person who ultimately oversees the company's health and safety system and the chain of command in making a report. Each business should establish a set of disciplinary rules that fairly punish anyone who fails to comply with the company's health and safety standards. The policy should also detail how emergencies and disasters should be handled. For fire and natural disasters a business owner should conduct period drills.

A business' health and safety policy should be included in the employee handbook, and each employee should give their employer a signed acknowledgement the policy and any updates have been received and read. Safety and health warnings and rules should also be posted throughout the work environment.

Educate and Make Aware: In addition to periodic drills, posted safety and health warnings, and the employee handbook, business owners should keep abreast of current and updated federal and state OSHA laws and disseminate new information on a timely basis to their workers. Business owners should also keep abreast of and make sure their employees are aware of any local or seasonal dangers.

Continue reading " Reduce Your Liability in an Unsafe Workplace" »

Under the Fair Labor Standards Act (FLSA) enacted in 1938, a minimum hourly wage is established for covered employees working in the United States. And while the FLSA does not set a cap on the number of hours a person may work, overtime pay equal to one-and-a-half times the regular rate paid to an employee, must be paid for every hour an employee works over 40 hours in a work week. Employees paid a fixed salary, as opposed to an hourly rate, are also entitled to minimum wage coverage. To calculate the hourly wage for a fixed salary, an employee divides the salary they receive in a pay period by the number of hours they worked in that pay period.

In Nevada, Nev. Rev. Stat. Ann. § 608.018 sets the minimum wage to $8.25 an hour. If a Nevada employer provides their employees with qualified health insurance coverage, the minimum wage drops to $7.25 cents an hour. Tipped employees, who make up a large number of the Nevada workforce, are covered under different minimum wage rules, however.

Under current FLSA and Nevada statutes, employers with tipped workers (such as wait staff, bartenders, and valets) may deduct up to $6.12 an hour as a tip credit from the minimum hourly wage paid to an employee. To qualify for the credit, an employee must earn more than $30 a month in tips. And if the total amount of an employee's hourly tips and cash wages does not equal the minimum hourly wage, a Nevada employer must compensate the employee for the difference.

For instance if during the first hour of work an employee receives $3.00 in tips and their minimum wage is $8.25, their employer must pay the employee an additional cash wage of $3.12 ($8.25 - $3.00 - $2.13). If the employee's minimum wage is $7.25, their employer must pay the employee an additional cash wage of $2.12 ($7.25 - $3.00 - $2.13). If the same employee earns $15.00 in tips during their second hour of work, their employer need only pay the employee the minimum wage of $2.13.

When an employee works more than 8 hours in a day or 40 hours a week Nevada law entitles them to receive overtime pay. Furthermore, an employee's 40 hour work week can be worked in a flextime schedule, such as 4 days at 10 hours a day, as long as it is agreed upon by the employer and employee.

Though many employers provide some type of compensation, FLSA and Nevada rules do not require Nevada employers to compensate employees for vacation time, sick days, or holidays. But if vacation compensation is provided, employers must pay the employee for any unused vacation when the employee's employment is terminated or the employee quits.

Despite several legal challenges, Nevada's legislature and voters have repeatedly upheld the minimum wage requirements.

Employers who violate FLSA requirements can be sued by their employee. A FLSA action must be brought within two years of the violation, however if the court determines that the employer's violations were willful, the statute of limitations is extended a year to three years total.

Continue reading "FLSA Protects Las Vegas Workers and Employers" »

To add a boo boo boo to the holidays, the Nevada Supreme Court has reversed an appeal from a district court order denying a petition for judicial review in a workers' compensation action, thus preventing workers injured on the job from receiving full disability compensation awards.

In Public Agency Compensation Trust v. Blake, 127 Nev. Adv. Op. 77 (2011), the respondent, Dale Blake, injured his back during the course and in the scope of his employment on December 15, 2004. Prior to this injury, in 1982, 1983, 1993, and 1995, Mr. Blake had four other work related incidents which caused injury to his back.

Under Nevada Revised Statutes workers who incur nonfatal occupational injuries and illnesses are entitled to benefits, regardless of fault. In determining the amount of worker compensation benefits the amount of the worker's impairment must be calculated by a physician after the worker is deemed to be "stable and ratable" (after medical treatment the injured portion of the worker's body is as well as it can be but there is still impairment).

For his 1995 injury and using the second edition of the AMA guidelines, Mr. Blake's permanent partial disability (PPD) was rated as 14% of a whole person and his worker compensation benefits calculated accordingly. For his 2004 injury, Mr. Blake was deemed under the fifth edition of the AMA guidelines to have a PPD of 40% of a whole person. Mr. Blake's worker compensation benefits were calculated by subtracting his previous PPD rating of 14% from his new rating of 40%. When appellant Public Agency Compensation Trust (PACT), which was the insure of record for Mr. Blake's employer when the 2004 injury occurred, questioned whether a 14% rating under the old guidelines was equivalent to a 14% rating under the new guidelines, Mr. Blake's physician reviewed his findings.

In a filed addendum to his original evaluation, the physician did not address whether PPD rating calculations would be identical under the old and new guidelines. The physician did state the data was insufficient to determine Mr. Blake's condition and PPD rating prior to his 2004 injury; however the new guidelines in the fifth edition of the AMA Guides allowed for an estimate of the previous impairment. The physician estimated the previous impairment had a rating of 23%, not 14%, and worker compensation benefits for the 2004 injury should thus be calculated using a 17%, not a 26%, impairment rating. On appeal, Mr. Blake's original worker compensation benefits based on a 26% impairment rating was reinstituted and this decision was upheld by the district court. PACT appealed the district court's decision.

Nevada's Supreme Court subsequently ruled that "NRS 616C.490 (9) is plain and unambiguous and requires that the calculations for prior and subsequent injuries be reconciled by first using the current edition of the AMA Guides to determine both the percentage of the entire disability and the percentage of the previous disability, and then subtracting the latter number from the former to calculate the award for the current injury. We further conclude that to the extent that NAC 616C.490 allows for computation of PPD compensation without reconciliation of the different editions of the AMA Guides, it impermissibly conflicts with NRS 616C.490 and is invalid."

The high court then held Mr. Blake's worker compensation benefits were thus calculable with a 17% impairment rating. Based on this ruling Nevada's Division of Industrial Relations (DIR), which reviews physician impairment evaluations, has stated it will no longer utilize NAC 616C.490 (4) in reviewing impairment evaluations nor correct rating errors.

Continue reading "Nevada Supreme Court Hacks Away at Workers Compensation Benefits" »

In a recent Nevada criminal case for drug possession, the presiding judge, Clark County District Court Judge Douglas Herndon, recused himself from the case citing his unhappiness with the plea deal struck between the state attorney general's office and defense attorney. Many have questioned whether Judge Herndon not only was correct in his recusal, but whether he should have recused himself from the case altogether.

The Nevada Code of Judicial Conduct Rule 2.11 outlines when a judge is disqualified or should recuse themselves from adjudicating a matter. Under Rule 2.11 a judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned. A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed by either the prosecution or defense.

While there is no rule that dictates whether the disqualification or recusal should occur before, during, or after the trial, it is widely accepted that any disqualification or recusal should occur when the impartiality occurs. When the disqualification or recusal is for impartiality, the reason for the impartiality must be disclosed on record.

In the matter on which he recused himself, Judge Herndon was hearing a case where the defendant was a former colleague. During a routine traffic stop in March, cocaine was found in the car of now former Deputy District Attorney David Schubert. As the former Chief Deputy District Attorney in charge of the Special Victims Unit, Judge Herndon and Schubert worked at the district attorney's office during the same time. At the time the case was assigned, Judge Herndon did not feel an obligation to recuse himself because though he and Schubert were colleagues; their relationship was one of a professional, not personal, nature. Neither the state attorney general's office nor Schubert's attorney requested a recusal.

After his arrest Schubert resigned from the district attorney's office. The state attorney general's office, which took over the case because of the conflict between Schubert and the district attorney's office, then struck a deal for Schubert to plead guilty to felony cocaine possession charges, with a sentence of probation. During the sentence hearing, Judge Herndon refused to accept the plea deal noting that Schubert was "getting a better deal than people you've prosecuted." That as a former prosecutor, his feelings for the sentence made it probably made it impossible for him to hand down the "too lenient" sentence because "I don't think that's just and proper." Judge Herndon also stated that as a prosecutor himself, Schubert, should have held himself to "a higher sense of responsibility."

Both the state attorney general's office and defense attorney felt the sentence was fair for a first time offender.

Now that Judge Herndon has recused himself, the case will be put back on the district court's master calendar, and then assigned to a new judge for a new sentence hearing.

Continue reading "Judge's Impartiality Can Impede Sentence Hearing" »

According to the United States Bureau of Labor Statistics, the metropolitan Las Vegas area has an available work force of close to a million with over 800 thousand currently employed. With a decreasing unemployment rate the chance that a nonfatal occupational injury will occur increases.

Under the Center for Disease Control (CDC) and National Institute for Occupational Safety and Health (NIOSH) guidelines, a nonfatal injury is deemed occupation related if "the injury or illness was sustained by a civilian noninstitutionalized worker while working for pay or other compensation, working on a farm, or volunteering for an organization (e.g., volunteer fire department), without regard to self-employment and full- or part-time work." Injuries or illnesses previously treated are not included in calculating statistics. The Bureau of Labor Statistics categorizes nonfatal occupational injuries and illnesses in the workplace by four case characteristics - 1) the part of the body where the injury or illness occurs, 2) the nature of the injury or illness, 3) the source that causes the injury or illness, and 4) the event that causes or exposure that furthers the injury or illness.

In 2010 the state of Nevada reported 4 thousand incidences of nonfatal occupational injuries and illness. Of these incidences, approximately 11 hundred required the worker to miss days at work, while the balance, approximately 900, required the worker to undergo a change in their job description or a transfer to a different job.

The most frequent nonfatal occupational injuries or illnesses are musculoskeletal sprains and strains, with the most of these occurring in the worker's shoulder and back (the trunk of the body). And though the number of bodily injuries or illnesses in the lower extremities are less, many of these types of injuries or illnesses are carpal tunnel (from making repetitive hand and wrist movements) syndrome related.

Las Vegas workers who incur nonfatal occupational injury or illnesses, which can also include slip and falls (higher in older workers), being struck, and equipment and motor vehicle injuries, may be entitled to financial consideration. While NIOSH "is the federal agency that develops recommendations for workplace health and safety standards" to prevent work-related injury and illness, workers compensation is largely administered on a state-by-state basis, Section 616 of the Nevada Administrative Code (NAC) and Nevada Revised Statutes (NRC) set out the regulatory guidelines for workers compensation.

Regardless of fault and whether medical treatment is necessary, Nevada's workers compensation issues benefits to workers injured on jobs working for employers who have worker's compensation coverage.

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With one of the most favorable tax situations in the country, Nevada is at the top of list for many start-up and ongoing enterprises. The state has no income franchise tax, no unitary tax and no corporate income tax. Nevada residents are not saddled with any personal income tax, gift taxes, inheritance or estate taxes, the real estate market is competitive, and there is a ready workforce.

So you'd think Nevada and cities like Reno, Tahoe, and Las Vegas would be booming with businesses. But with some of the highest consumption (sales, liquor, gaming, gasoline, etc) and unemployment taxes, Nevada is in hot competition with other western states, such as Texas, Wyoming, South Dakota, and Washington. Las Vegas to the rescue!!

In 2010, the city of Las Vegas joined forces with Zappos.com to make downtown Las Vegas a magnet haven for nongaming businesses. The first step, selling City Hall to the Resort Gaming Group who then leased the building to Zappos.com who expects to move-in in 2012. The second step, utilizing Zappos.com founder Tony Hsieh (pronounced "Shay") as Las Vegas' unofficial ambassador for new and unusual start-up entrepreneurs. The third step, making the revitalization of downtown Las Vegas a top priority and offering nongaming enterprises a vast array of free and low-cost services which start with developing a business plan to obtaining the necessary business licenses and incorporation.

But when contemplating a new business, one of the most important considerations is the business structure. In Nevada, and by proxy Las Vegas, one of the most popular business structures for new start-ups is the Limited Liability Company, or LLC, which is recognized in all 50 states.

Like the Subchapter S and C Corporation, an LLC is an entity separate from the individual owners. Unlike the C Corporation (whose income is taxed to the corporation and its stockholders), but like the Subchapter S, for tax purposes the company's income, or loss, passes through to the owners who then report the income, or loss, on their personal income tax returns. Double taxation is nixed. Another advantage of the Nevada LLC over the C and Subchapter S Corporations is annual meetings are not required, and all earnings do not have to be distributed and do not have to be distributed based on the ratio of ownership.

Another big advantage of a Nevada LLC is the reduced restrictions on who can own the company. With a Subchapter S Corporation, the number of owner shareholders is limited to 75. Furthermore owner shareholders can not be a nonresident alien or another corporation, including an LLC. With a Nevada LLC the number of owners is unlimited and can include resident aliens and other corporations.

There is also a big disadvantage to establishing a Nevada LLC - self-employment taxes. LLC owners are deemed to be self-employed and are therefore must pay self-employment tax on all the company's net income. With a C corporation owners are never liable for self-employment tax and in Nevada there is no personal income tax on their wages. With a Subchapter S corporation, self-employment tax is only due on wages paid.

Continue reading "Don't Start Your Las Vegas Business in a Bind" »