Las Vegas Injury Lawyers Blog

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" »

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" »

Under Title VII of the Civil Rights Act of 1964 and the Nevada Fair Employment Practices Act (NV Rev. Stat. Sec. 613.310et seq.), Las Vegas employers with 15 or more employees may not discriminate against their employees on the basis of sex or sexual orientation/stereotyping. As of October 2011, Las Vegas employers also are prohibited from discriminating based on gender identity. For federal and state purposes, sexual harassment is sex discrimination. Two of the biggest obstacles in any sexual harassment case are 1) defining what sexual harassment is, and 2) sufficiently proving that sexual harassment occurred.

What is Sexual Harassment?
"I know it when I see it." These words, uttered by Supreme Court Justice Potter Stewart in describing his test to determine what is and is not pornography, can also be aptly applied in describing sexual harassment - the person allegedly harassed knows it when they see or feel offended.

The victim can be the person directly harassed, or someone offended by the conduct. Additionally, the harasser can be a fellow employee - supervisor or co-worker - or someone who has a business relationship with the employer - agent or client.

Generally acts of sexual harassment fall into two categories:

Quid Pro Quo: A person in a position of power makes sexual demands on another person by or through direct or overt pressure.

Hostile environment: The work environment allows unwelcome sexual behavior that creates an offensive, hostile, or intimidating workplace, affects the victim's employment, or unreasonably interferes with the victim's work performance.

Sexual harassment generally includes the following type of behavior:
1) sexist statements or behavior that insult or degrade one's gender; for instance, making sexual comments about another person's body parts or appearance, telling lewd jokes, or divulging sexual anecdotes.
2) unwelcomed or inappropriate physical or verbal seductive behavior, such as sharing or posting sexually inappropriate images, making sexual gestures, touching, or asking questions about one's sexual history or orientation.
3) sexual bribery or coercion, which includes a promise of reward for engaging in or threat of punishment for not engaging in a sexual activity.

Proving Sexual Harassment
The burden of proof to prove sexual harassment occurs is always initially with the alleged victim. In addition to showing an act or acts of sexual harassment occurred, the victim must also demonstrate that they are part of a class protected against sexual harassment, a complaint (preferably in writing) was appropriately made to management or followed the employer's stated chain of command in such situations, and that the employer failed to act on the complaint. Once the victim meets this burden, to avoid damages, a Las Vegas employer must show the complained upon acts did not constitute harassment or were not sexual in nature, the victim was not a member of a protected class, no or an insufficient complaint was made, and the Las Vegas employer properly acted on the complaint.

While sexual harassment may occur without economic injury to or discharge of the victim, economic injury - firing, suspension, demotion, and relocation - and other forms of retaliation -ostracization, coworker harassment, and undesirable changes to job duties - towards the victim are also prohibited. A separate cause of action for retaliation is available to the victim, and if proven, can strengthen the victim's sexual harassment case.

Continue reading "Sexual Harassment is Sexual Discrimination" »

Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)

"Equal pay for equal work" has been the mantra for woman's work since the start of the feminist movement. In our current world, women are still making less than men for the same type of work. Women are only earning 77.5 cents for every dollar a man earns. Further, women who work harder to receive higher education levels actually have even more of a disparity in wages earned compared with men. This obviously doesn't seem fair when we have such a long history in our country fighting for what is right and just in the world. What is an even more staggering statistic is that in 99% of all occupations a woman has to choose from, they will make less than men.

These kinds of statistics and facts seem to fly in the face of reason and good faith. Recently within the city of Detroit, allegations have been made against the Detroit Water and Sewage Department on sex discrimination. The former director, Pamela Turner, had earned a salary of $130,000 when she first started working there. Although this seems like a healthy salary, she was in fact making approximately $100,000 less than the previous two directors who were male.

Turner, after receiving recognition for her hard work and pushing for a pay increase, was eventually was given a raise to $155,000. Despite this raise, it still paled in comparison to the $240,000 that her predecessors made. She eventually put in her resignation allegedly due to the refusal of the city to compensate her adequately. She claims that, after her resignation, the city has posted listings for her replacement at a compensation of $230,000.

That alleged facts of this case are indeed shocking. To this writer, it seems like an obvious case of sex discrimination; former and future heads of the department will be making around the same amount of money while Turner was paid considerably less. When they attempted to give her a raise, it was a paltry amount, possibly to appease her desire for equal pay.

The government and state agencies should always be leading the way in fair employment practices. Additionally, we hold the officials of our cities to a stricter code because we expect that as keepers of the city they will follow our laws. If people perform equal work then they should be receiving equal pay. To hold similar work to different standards, solely because of the sex of the person performing the work, deteriorates our system. If people are treated fairly, they will usually be happier than if they are discriminated against and happier workers are more productive. The system works as long as we work within the system.

A full article can be found here: Former Detroit water chief sues city, alleging pay discrimination

Continue reading "Equal Pay for Equal Work" »

Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)

In Las Vegas, we are guaranteed the right to work. At first this may seem like a readily accepted idea but when considering many countries prevent people from working, on the basis of discrimination, the reality of our privilege sinks in. We have progressive laws that allow individuals the liberty to pursue work and happiness. In Nevada, equity is a cardinal principal and treating others with the same respect, as everyone else, is essential. We may not all be born of the same race, religion or economic background but we interact on a level playing field.

The Nevada Department of Employment and Training, along with the EEOC, is like a referee patrolling this playing field and guaranteeing the rights of workers. When Nevada and federal authorities come across illegal practices, they intervene and step in to give Las Vegans a fair chance at enforcing their rights. Recently the EEOC hit a grand slam with its largest settlement regarding the Americans with Disabilities Act against Verizon Communications. Verizon has agreed to pay $20,000,000 in order to dismiss claims made against it by the EEOC.

Verizon has been firing employees who accrued a certain number of missed days a year regardless of the cause or reason. The system Verizon implemented was structured so that employees would earn a certain number of points on each absence. Once an employee had received so many points they were eligible for disciplinary action or termination. However, the EEOC says that such a policy is too broad and does not accommodate for individuals with disabilities. Verizon replied to the suit by saying it was settling to avoid further legal costs and that it feels it went above what was expected by law in its policy. It also said it would incorporate the concerns of the EEOC into its new company policy.

This is not at all uncommon in the field of law where it is not necessary to know the law in order to be found guilty of violating it. Verizon alleged that it intended to develop a generous absentee program for its employees allowing them more flexibility. Despite this avowed intention, the company was pursued for allegedly not addressing the needs of the hundreds of disabled employees who were fired due to the policy.

Every business requires some sort of oversight and accountability. The job of the Nevada Department of Employment and Training and the EEOC has guaranteed the rights of hundreds of thousands of workers who work for Verizon Communication. This however, would not have been possible had a couple employees from Maryland not filed charges. Your rights are important and legal counsel should always be sought when justice is at stake.

A full article can be found here: Verizon to pay $20 million to settle discrimination suit

Continue reading "Verizon Communications Pays $20,000,000 for Violating the Americans with Disabilities Act" »

Written By a Law Clerk for Parker Scheer Lagomarsino: Robert Maxey

Having a dream and living it are two very different things. It takes courage and determination to make your dream happen. For many people we never get to see our dreams come true or even have the chance to experience them. For others they refuse to give up until they achieve their goals. We live a life of privilege and opportunity within the United States where most dreams are within reach if we work hard enough. Many countries around the globe do not have this support system or opportunity; if you are born destitute you forced to stay that way until you die.

Large quantities of people seek to immigrate to the Untied States legally every year through visa's and citizenship. However we possess such privilege and opportunity that people are willing to risk their lives in order to have. Illegal immigration has been on a steady incline for years and many individuals who come here do so at their own peril risking assault, abuse and death. We must not take our privilege for granted.

Both those who immigrate her legally and illegally still face similar challenges once in the United States. Language barriers can create an inequality whereby immigrants can be taken advantage of. Within southern California where many immigrants from Central America live people are attempting to unionize an industry that exploits both legal and illegal immigration. The industry in question is the car wash industry.

Recently Tomas Rodriguez of Hidalgo, Mexico, was awarded $80,000 by the Los Angeles County Superior Court for back wages and damages. His suit describes a tyrannical system whereby immigrants were taken advantage for being ignorant of their rights. In his suit he alleges he was forced to be at work hours before he was actually allowed to clock in. He describes the carwash industry as a corrupt one where immigrants are often hired below minimum wage, forced to work hours without pay and in some instances forced to work only for tips.

Rodriguez said that after workers were hired to work only for tips his hours for work were cut so severely that he couldn't afford to eat or pay rent. He relied on collecting cans and bottles like many homeless do in order to make ends meet. In his suit he alleges the owners used strong-arm tactics and threats to scare employees into obedience.

People come to America because we are the land of the free and criminal activity, which exploits and abuses people, is unacceptable. Since the industrial revolution we have made giant strides in labor laws in order to eliminate and remove servitude and wage slavery. When an entire industry engages in this oppressive criminal practice it acts as a trap. People who enter the trap are frightened into submission, become dependent on their job to live and therefor cannot leave an abusive situation. If we believe in freedom then we must stand against tyranny.

A full article can be found here: Ex-carwash worker wins $80,000 lawsuit over labor violations

Our law firm does not represent anybody in this incident. The commentary is for educational purposes only. If you or someone you know has been the victim of labor violations and would like to be represented by a good Las Vegas Lawyer, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.